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Beasly School of Law Ranji-nogales Research Paper a Global Approach to Secret Evidence How Human Rights Law Can Reform Our Immigration System 2008

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• LEGAL STUDIES RESEARCH PAPER SERIES •

Research Paper No. 2008-38

Date: 01-21-2008

Title:

A Global Approach to Secret Evidence:
How Human Rights Law Can Reform Our
Immigration System

Author:

Jaya Ramji-Nogales

Cite: 39 Colum. Hum. Rts. L. Rev. ___ (forthcoming 2008)
This paper can be downloaded without charge from the
Social Science Research Network Electronic paper Collection:
http://ssrn.com/abstract=1080317

DRAFT OF JANUARY 3, 2008
PLEASE CITE TO 39 COLUMBIA HUMAN RIGHTS LAW REVIEW ___ (FORTHCOMING 2008).

A GLOBAL APPROACH TO SECRET EVIDENCE:
HOW HUMAN RIGHTS LAW CAN REFORM OUR
IMMIGRATION SYSTEM
Jaya Ramji-Nogales1

INTRODUCTION ....................................................................................................................... 1
LEGAL FRAMEWORK A UTHORIZING THE USE OF SECRET EVIDENCE IN IMMIGRATION
PROCEEDINGS .......................................................................................................................... 7
Non-Citizens and the Constitution.................................................................................. 8
The Statutory Framework............................................................................................... 10
Challenges to the Use of Secret Evidence in Immigration Proceedings................ 13
THE TROUBLE WITH SECRET EVIDENCE........................................................................... 16
Harm to Individuals........................................................................................................ 16
Societal Harms................................................................................................................. 21
Global Harms................................................................................................................... 24
National Security Interests at Stake.............................................................................. 27
HUMAN RIGHTS: A YARDSTICK AND A GUIDEBOOK ...................................................... 28
IMMIGRATION LAW AND THE HUMAN RIGHT TO DUE PROCESS ................................... 29
The Aptness of Human Rights Law............................................................................... 30
Sources of Human Rights Law ...................................................................................... 31
What Human Rights Law Says ...................................................................................... 34
Non-Citizens Lawfully Present................................................................................ 34
Non-Citizens Seeking Protection from Persecution.............................................. 35
Non-Citizens Seeking Protection against Torture ................................................. 39
Non-Citizens with Strong Family Ties ................................................................... 41
The Terrorism Suspect Who Cannot Be Removed............................................... 42
Criticism of Human Rights Treaties............................................................................. 44
HUMAN RIGHTS IN STATUTORY INTERPRETATION, REGULATION DRAFTING, AND
INSTITUTIONAL CULTURE .................................................................................................... 45
CONCLUSION ......................................................................................................................... 48

INTRODUCTION
As the United States confronts a tide of global disapproval
resulting from its mismanaged efforts to combat terrorism at home
1

Assistant Professor of Law, The James E. Beasley School of Law, Temple University. J.D., Yale Law
School; LLM, Georgetown University Law Center; B.A., University of California, Berkeley. The author
would like to thank Ahilan Arulanantham, Jane Baron, Denise Gilman, David Hoffman, David Koplow,
Alistair Newbern, Andrew Schoenholtz, Philip Schrag, Peter Spiro, Jenia Iontcheva Turner, and Lesley
Wexler for their generous comments, as well as the fellows who participated in a workshop at
Georgetown for their thoughts and feedback. Many thanks to Susan Akram, David Cole, Niels Frenzen,
and Kit Gage for assistance in tracking down factual information, to Kathleen Gerber for excellent
research assistance, and to Heba Nassef Gore for pinch-hitting on Arabic-language research. Last but not
least, thanks to Luis Carlos Ramji-Nogales for his patience and support.

1

Electronic copy available at: http://ssrn.com/abstract=1080317

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and abroad, the tension between national security interests and due
process rights has become one of the most pressing issues facing our
nation. In particular, observers have roundly criticized the
government’s use of expanded secrecy in various arenas and its
prioritization of security interests at the expense of procedural
fairness. 2 The conflict between security and fairness is especia lly
acute in immigration proceedings, which the United States
government often uses to remove foreign nationals, largely Arabs,
Muslims, and South Asians, 3 suspected of terrorist activities. 4
As evidenced during Congress’s immigration reform debates of
2007, our immigration system is badly broken. 5 I have written
elsewhere about the serious disparities in decision- making in the
asylum process – disparities that appear to result from both the great
discretion awarded to and the inadequate professionalization and
oversight of administrative adjudicators in that system. 6 This article
investigates discretionary decision- making by immigration officials
more broadly, presenting as a case study the use of secret evidence in
immigration proceedings. Through an exp loration of problems with
the current practice that result from an excessive focus on national
security in a dysfunctional bureaucracy, this paper presents solutions
applicable to efforts to combat terrorism and repair the immigration
system more broadly. 7
2

See, e.g., Bob Barr & John Podesta, Preface to, David Banisar, Government Secrecy: Decisions
Without Democracy at 3 http://www.openthegovernment.org/otg/govtsecrecy.pdf (“[T]he secrecy claims
asserted by the [Bush] administration go far beyond what is contemplated by the law—and far beyond
what is healthy for democracy, which depends on an informed citizenry.”).
3
See. e.g., Kevin R. Johnson & Bernard Trujillo, Immigration Reform, National Security After
September 11, and the Future of North American Integration, 91 Minn. L. Rev. 1369, 1380-86 (2007).
(describing immigration-related measures targeted at Arab and Muslim nationals, including
“interrogations, arrests, detentions, special registration, and slectiv e deportation.”)
4
See, e.g., Mary Beth Sheridan, Immigration Law as Anti-Terrorism Tool, Wash. Post., June 13, 2005, at
A1 (“In the past two years, officials have filed immigration charges against more than 500 people who
have come under scrutiny in national security investigations . . . .”); Juliet Stumpf, The Crimmigration
Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 385 (2006) (“Immigration law
is now often used in lieu of criminal law to detain or deport those alleged to be involved in terrorism.”);
Nora V. Demleitner, Misguided Prevention: The War on Terrorism as a War on Immigrant Offenders
and Immigration Violators, 40 No.6 Crim. Law Bulletin 2 (2004) (“[I]mmigration law has become a
major investigatory and enforcement tool on the frontline in the fight against terrorism.”).
5
See, e.g., FoxNews.com, Bush: America’s Immigration System is Broken, (May 30, 2007),
http://www.foxnews.com/story/0,2933,276114,00.html?sPage=fnc.specialsections/immigration
(“President Bush called the nation’s immigration system ‘broken’…”); Christi Parsons, Obama:
Arellano’s plight shows ‘broken immigration system,’ The Swamp: Chi. Trib.’s Washington Bureau,
Aug, 21, 2007,
http://weblogs.chicagotribune.com/news/politics/blog/2007/08/obama_arellanos_plight_shows_b.html
(Barack Obama said, “ Although I do not condone Ms. Arellano’s defiance of the law, her plight is
representative of a broken immigration system.”).
6
See Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev.
(forthcoming Nov. 2007).
7
For the purposes of this article, ‘secret evidence’ is defined as documentary or testimonial information
that the non-citizen is not allowed to see and on which the government relies to support removal of the
immigrant.

2

Electronic copy available at: http://ssrn.com/abstract=1080317

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In several cases over the past decade, 8 the government has relied
on startlingly inaccurate evidence to support its claims that certain
immigrants, generally Arab, Muslim, and South Asian, should be
removed. 9 As a result of the government’s claims that national
security interests prevented the revelation of this information to the
immigrants in question, the evidence was not tested by the adversarial
process. More importantly, it appears that government lawyers did
not endeavor to ensure the reliability of this evidence before
presenting it in court, instead basing their cases on information from
prejudiced sources, mistranslations, and rumors.
The case of Maher Arar is perhaps the best-known recent example
of the misuse of secret evidence in immigration proceedings. 10 In
September 2002, FBI agents detained and interrogated Mr. Arar, a
Canadian and Syrian citizen, after he transited through JFK Airport. 11
Mr. Arar repeatedly denied any connection to terrorist groups and
specifically asked the FBI not to send him to Syria as he feared
torture there. 12 Nevertheless, the Immigration and Naturalization
Service (INS) determined that Mr. Arar was a member of Al Qaeda
and thus inadmissible and removable. 13 The INS refused to allow Mr.
Arar to read the form he was initially asked to sign 14 and ignored Mr.
Arar’s plea for reconsideration. 15 Without allowing further inquiry
before an immigration judge, 16 the INS removed Mr. Arar to Syria,
where he was imprisoned and tortured severely for almost a year. 17
8

Information on the size of the secret evidence problem (i.e. how often the government uses secret
evidence in immigration court) is purely anecdotal and only reflects the cases that the media publicizes.
The government has not presented statistics on the use of secret evidence in immigration court since
2000, and because records of immigration proceedings are not publicly accessible, it is impossible to
obtain this information independently. We do know of consistent efforts in Congress to expand the use
of secret evidence in immigration proceedings as part of immigration reform legislation. See infra fns.
74 to 77 and accompanying text for further discussion of this issue.
9
See also Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After
September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. Ann. Surv. Am. L.,,295, 322
(2002) (describing the government’s reliance on secret evidence to detain and deport Arabs and
Muslims). The current term of art for physical expulsion of a non-citizen is "removal"; this article uses
this term interchangeably with "deportation" although the terms have different technical meanings. In
simple terms, removal proceedings are immigration proceedings in which a judge or government official
determines whether a non-citizen may remain in the United States.
10
Arar v. Ashcroft , 414 F. Supp. 2d 250, 252-53 (E.D.N.Y. 2006).
11
Id. at 252-53 (describing Mr. Arar’s confinement and interrogation and stating that FBI agents ignored
Mr. Arar’s repeated requests to see a lawyer). Mr. Arar repeatedly asked to make a phone call; the FBI
ignored these requests for six days. He finally called his family, who contacted the Canadian consulate
and retained an attorney. After a week in detention, a Canadian consular official visited Mr. Arar and
assured him that he would not be removed to Syria.
12
Id. (describing Mr. Arar’s request to be sent to Canada, his country of residence, or to Switzerland,
through which he had transited when returning from a vacation in Tunisia to New York).
13
Id. at 254.
14
Id. at 253.
15
Id.
16
Id. at 254.
17
Id. at 254-55. (describing how Syrian officials held Mr. Arar in a rat -infested “grave” cell that was six
feet long, seven feet high, and three feet wide, allowed him to bathe only once a week, fed him barely

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Mr. Arar, it turns out, was casually acquainted with an individual
suspected of terrorist activity, and was on the Canadian government’s
list of possible witnesses – not suspects or targets – for a terrorism
investigation. 18 Mr. Arar and his family continue to suffer the
psychological aftermath of his imprisonment. 19 The INS never
verified the evidence allegedly linking Mr. Arar to Al-Qaeda through
any independent legal process; this information was never presented
to a judge, let alone to Mr. Arar or his attorney. Secretary of State
Condoleezza Rice recently admitted that the United States
government mishandled Mr. Arar’s case, and should not have
transferred him to a country where he faced torture. 20
As this story illustrates, in the immigration system, rules
restraining government discretion are relaxed and non-citizens have
little political power – an explosive combination, particularly when
combined with the government ’s incentive to appear effective in
combating terrorism. This article examines the government’s misuse
of secret evidence in immigration proceedings as a case study to
illustrate the individual, societal, and global ramifications of
significantly favoring national security over due process in
discretionary administrative decision- making. Given the repeated
failure of domestic law safeguards to prevent this imbalance, the
paper suggests that the administrative agencies responsible for
immigration proceedings rely on human rights law in interpreting
statutes, drafting regulations, and creating institutional culture. This
turn to human rights law is particularly appropriate given the type of
law (immigration) and relevant human rights (due process) at issue.
The misuse of secret evidence – the presentation of unreliable and
inaccurate information, often without an adequate showing of the risk
of revealing this information to the non-citizen – has serious
ramifications, which I divide into three categories. First, on an
individual level, the government’s failure to test its evidence led to
grave injustice, namely the detention of innocent men and, in some
cases, the separation of families for many years. Second, on a societal
level, the misuse of secret evidence decreases the legitimacy of
immigration proceedings and actually increases the risk of terrorism
by alienating immigrant communities. Moreover, this practice
contradicts deeply held American norms of procedural fairness
edible food, regularly beat him with an electric cable and their fists, and threatened further torture in the
form of electric shocks, hanging, and spine breaking).
18
Id. at 255-56.
19
Stephen J. Toope, Fact Finder, Commission of Inquiry Into the Actions of Canadian Officials in
Relation to Maher Arar 19-23 (Oct. 2005); see also Arar, supra note 10, at 256. Mr. Arar suffers from
nightmares, lethargy, bouts of unpredictable rage, phantom sensations of bugs crawling over his body,
paranoia, stress headaches, and memory loss. He is emotionally distant from his family and impatient
with his children, and overly dependent on his wife. He feels isolated from his community. He has been
unable to find a job since he returned.
20
Reuters, Rice Admits U.S. Erred in Deportation, N.Y. T IMES (Oct. 26, 2007).

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embodied in the Sixth Amendment. Finally, on a global level, the
misuse of secret evidence in immigration court contributes to the
imbalance between national security interests and due process rights
that has diminished the authority of the United States as a world
leader, estranging allies in the fight against terrorism and providing
support for those who oppose our values. It also sends a dangerous
message to the international community: that America does not treat
non-citizens, particularly Arabs, Muslims, and South Asians, fairly,
and refuses to play by international rules.
This is not to say that the government’s focus on prevent ing
another terrorist attack on its citizens or its territory is entirely
misguided. There are important national security issues at stake; the
revelation of certain information could serio usly jeopardize the lives
of government witnesses and their families, the ability of intelligence
agents to work in the field, current methods and sources of
information-gathering, and vital security information that protects
sites and people at risk of attack. These national security interests
must be taken into account in framing the debate about the use of
secret evidence. But how do we do so without eviscerating basic due
process rights?
Human rights treaties bring us back to first principles, giving
guidance on how to resolve the tension between national security
concerns and the due process rights of non-citizens, while crafting an
interpretive approach that is most germane to the U.S. context. Much
ink has been spilled of late by eminent scholars and jurists on the use
of foreign and international law in constitutional interpretation; 21 this
article applies that literature to the context of administrative law.
21

See, e.g., Justice Ruth Bader Ginsburg, “A Decent Respect to the Opinions of Humankind”: The Value
of a Comparative Perspective in Constitutional Adjudication, 1 FIU L. Rev. 27, 42 (2006) (stating “I
nonetheless believe we will continue to accord ‘a decent Respect to the Opinions of [Human]kind’ as a
matter of comity and in a spirit of humility”); Gerald L. Neuman, International Law as a Resource in
Constitutional Interpretation, Harv. J.L. & Pub. Pol’y 177, 187 (2006) (“the content of an international
norm receives persuasive force in the interpretation of a parallel constitutional norm”); Vicki C. Jackson,
Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109, 116 (2005)
(discussing how “[e]ngagement with transnational legal sources may helpfully interrogate understanding
of our own Constitution in several ways”); Hon. Diarmuid F. O’Scannlain, What Role Should Foreign
Practice and Precedent Play in the Interpretation of Domestic Law?, 80 Notre Dame L. Rev. 1893,
1898, 1900 (2005) (discussing decisions where the Supreme Court has invoked foreign practice and
precedent and arguing why “American courts may have a sound basis for treating foreign legal
authorities with caution.”); Hon. Richard Posner, No Thanks, We Already Have Our Own Laws, Legal
Aff. (July/Aug. 2004), available at http://www.legalaffairs.org/issues/July-August2004/feature_posner_julaug04.msp (arguing “[t]he court should never view a foreign legal decision as a
precedent in any way.”); Justice Antonin Scalia, Foreign Legal Authority in the Federal Courts, 98 Am.
Soc’y Int’l L. Proc. 305 (2004) (discussing when the use of foreign legal materials is legitimate); Hon.
Patricia M. Wald, The Use of International Law in the American Adjudicative Process, 27 Harv. J.L. &
Pub. Pol’y 431, 436 (2004) (discussing “the use by American judges . . . of decisions by the high courts
of foreign countries as guides to or as persuasive authority for decisions involving our own
Constitution”); Harold Hongju Koh, Paying “Decent Respect” to World Opinion on the Death Penalty,
35 U.C. Davis L. Rev. 1085 (2002) (discussing the significance of not relying on foreign and
international law in the administration of the death penalty in the United States) .

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Administrative agencies can use human rights law as a yardstick, to
understand where we may have deviated from the appropriate balance
between national security and due process and as a guidebook to
assist in determining how we can best uphold both by learning how
other countries have resolved similar problems.
Human rights treaties are particularly appropriate in the case of
secret evidence in immigration court. As immigration law involves
the movement of people across borders and is partially derived from
international law, it makes sense to apply human rights law here.
Moreover, the right at issue – procedural due process – is one that the
United States introduced into international law and that is
fundamental to our legal system. 22 For reasons explained below, the
statutory provisions authorizing the use of secret evidence in
immigration proceedings have withstood facial constitutional
challenges on procedural due process grounds. 23 The paper applies
three treaties that the United States has signed and ratified: the
International Covenant on Civil and Political Rights (ICCPR), 24 the
United Nations Convention Relating to the Status of Refugees and its
accompanying Protocol Relating to the Status of Refugees (Refugee
Convention), 25 and the United Nations Convention Against Torture

22

See United Nations Commission on Human Rights, Report of the Drafting Committee on an
International Bill of Human Rights, United States Suggestions for Articles to be Incorporated in an
International Bill of Human Rights, at Arts. 9, 10, U.N. Doc. E/CN.4/21; Manfred Nowak, U.N.
Covenant on Civil and Political Rights: CCPR Commentary 236 (1993) ("During the drafting of Art. 14
[of the ICCPR], a fundamental role was played by the US, in whose constitutional history central
importance has been placed on substantive and procedural "due process of law.'").
23
While “as applied” constitutional challenges to the use of secret evidence against resident non-citizens
have generally met with success, a facial due process challenge to the provisions of the Immigration and
Nationality Act that authorize the use of secret evidence in immigration proceedings is unlikely to clear
the hurdle of showing that “no set of circumstances exists under which the Act would be valid.” Rafeedie
v. INS , 795 F.Supp. 13, 20 (D.D.C. 1992) (dismissing facial challenge under the Fifth Amendment to
provisions of INA that authorized use of secret evidence because statute did not preclude Attorney
General from giving more process than required) (citing Ohio v. Akron Center for Reproductive Health,
110 S.Ct. 2972, 2980-81 (1990)). This case did, however, uphold a facial challenge under the First
Amendment to the secret evidence provisions of the INA.
24
International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999
U.N.T.S. 171 (entered into force Mar. 23, 1976) (hereinafter “ICCPR”). See infra fn. 159 for further
discussion of the ICCPR.
25
United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189
U.N.T.S. 150 (entered into force Apr. 22, 1954); United Nations Protocol Relating to the Status of
Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267
(entered into force Oct. 4, 1967; for the United States, Nov. 1, 1968) (hereinafter “Refugee
Convention”). While the United States has not ratified the Refugee Convention, it acceded to the
Refugee Protocol on November 1, 1968. See
http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf. The Protocol incorporates Articles 2
through 34 of the Convention; as a result, the U.S. government has essentially signed on to the Refugee
Convention. United Nations Protocol Relating to the Status of Refugees, Art. 1, para. 1 (“The States
Parties to the present Protocol undertake to apply Articles 2 through 34 inclusive of the Convention to
refugees hereinafter defined.”).

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and Other Cruel, Inhuman, or Degrading Treatment (CAT)26 to these
provisions on the use of secret evidence in immigration court.
Despite the limitations of domestic law in challenging this practice,
this investigation illustrates that human rights law can provide a
framework that will enable the administrative agencies responsible
for immigration proceedings to interpret statutes, draft regulations,
and create an institutional culture in a way that more appropriately
balances national security and due process concerns. Such an
approach will not only ensure fair treatment for individuals, but will
strengthen the legitimacy of the American immigration system, which
will in turn help to make our society safer and our nation more
powerful on the world stage.
LEGAL FRAMEWORK AUTHORIZING
THE USE OF SECRET EVIDENCE IN IMMIGRATION P ROCEEDINGS

Before examining the problems that have resulted from the misuse
of secret evidence in immigration proceedings, this paper lays out the
relevant domestic legal framework, focusing on the Department of
Homeland Security’s (DHS) use of national security information
against three types of non-citizens in three types of proceedings.27
The Immigration and Nationality Act (INA) and its regulations
authorize DHS to use secret evidence against non-citizens who: (1)
are apprehended at the border, i.e. who have not been legally
admitted into the United States; (2) entered the United States legally
but no longer hold lawful immigration status; or (3) hold legal status
but are alleged to have engaged in terrorist activity. DHS can use
this secret evidence in: its own internal administrative processes,
removal proceedings in immigration court, or an Alien Terrorist
Removal Court (ATRC).
The first type of proceeding, internal administrative procedures,
may be used only against non-citizens at the border. If the evidence
shows that this person poses a threat to national security, DHS can
order him removed without any review of this decision in
immigration court or federal court. 28 In the second type of
proceeding, a removal hearing in immigration court, DHS can present
secret evidence against both non-citizens who were apprehended at
the border as well as those who no longer hold lawful immigration
status. This article focuses particularly on those immigrants in the
latter category who seek permission to remain to be protected against
26

United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51
(entered into force June 26, 1987) (hereinafter “Convention Against Torture” or “CAT”).
27
In March 2003, the Department of Homeland Security took over the functions of the Immigration and
Naturalization Service. See 6 U.S.C. §§251-298.
28
INA § 235(c)(2)(B)(ii); 8 C.F.R. § 235.8(b)(1).

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torture or persecution in their home country or because of close
family ties to a U.S. citizen. 29 Finally, the government may use secret
evidence in an Alien Terrorist Removal Court (ATRC) proceeding to
remove immigrants who hold legal status, including permanent
residents, but are alleged to have engaged in terrorist activity;
however, this process has never been used. 30
Non-Citizens and the Constitution

These three categories of non-citizens reflect the distinctions that
have been made in legislation and jurisprudence on the constitutional
rights of immigrants. Until 1996, the INA distinguished between noncitizens who had “entered” the United States and those who had not.
Non-citizens who had not yet entered could be removed in exclusion
proceedings, in which few, if any, constitutional protections applied;
this policy stemmed from the idea that the Constitution does not
apply outside of the borders of the U.S. and that a person detained at
the border had constructively not entered the constitutional space. 31
The resultant congressional authority “to exclude or expel aliens,
unconstrained by any judicially enforceable constitutional limits” is
known as the “plenary power” doctrine. 32 (Even in light of this
principle, the Supreme Court has held that Fifth Amendment endows
non-citizens who have not “entered” the United States with a
minimum level of due process rights.)33 In contrast, non-citizens who
29

INA § 240(b)(4)(B); 8 C.F.R. § 1003.19(d). See also INA § 240A(b) (allowing non-citizens unlawfully
present to become permanent residents if the alien (a) has been physically present in the United States
for a continuous period of not less than ten years; (b) has been a person of good moral character during
such period; (c) has not been convicted of an offense; (d) establishes that deportation would result in
exceptional hardship to a U.S. citizen or permanent resident spouse, parent, or child or (e) they have
been in the U.S. for three years and they or their U.S. citizen child has been battered or subjected to
extreme cruelty by a U.S. citizen or permanent resident spouse or parent, and removal would result in
extreme hardship to the non-citizen, her child, or her parent); INA § 245(i) (allowing adjustment to
status of permanent resident for non-citizens unlawfully present who are beneficiaries of family-based
visas, on the basis of their status as a child or sibling of a U.S. citizen or a spouse or unmarried child of a
permanent resident, if that visa petition was filed on or before April 30, 2001); INA § 208(c)(1)
(allowing non-citizens granted asylum to remain in the United States); INA § 241(b)(3) (prohibiting
removal, except under very limited circumstances, of non-citizen whose life or freedom would be
threatened in their country of origin); 8 C.F.R. §§ 1208.16(c), (d), 1208.17(a) (prohibiting removal of
non-citizens to a country in which it is more likely than not that they would be tortured).
30
INA §§501-07, see also INA § 237(a)(4)(B) (terrorist activities as grounds for deportation).
31
See, e.g., U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) ("Whatever the procedure
authorized by Congress is, it is due process as far as an alien denied entry is concerned."); U.S. ex rel.
Shaughnessy v. Mezei, 345 U.S. 206, 212 (1953) (same).
32
Gerald L.Neumann, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 14
(1996).
33
Wong Wing v. United States, 16 S.Ct. 977, 981 (1896) (excludable aliens may not be punished at hard
labor without due process of law); see also Barrera-Echavarria, 44 F.3d 1441, 1449 (9th Cir. 1995)
(“Some of the cases involving excludable aliens suggest that they do enjoy certain substantive
constitutional rights.”); Lynch v. Cannatella, 810 F.2d 1363, 1373 (5th Cir.1987) (“The ‘entry fiction’
that excludable aliens are to be treated as if detained at the border despite their physical presence in the
United States (footnote omitted) determines the aliens’ rights with regard to immigration and deportation

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had entered were entitled to deportation proceedings, in which the
due process protections of the Fifth Amendment applied. 34
This “entry fiction” led to confusing and convoluted results; a
non-citizen at the border who had previously resided lawfully in the
United States and had family members in the United States could be
provided less process than a non-citizen who had entered illegally and
had few ties to the United States. 35 The Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 substantially altered the
statutory basis for this distinction; both exclusion and deportation
hearings are now called removal proceedings, in which
determinations of a non-citizen’s admissibility and deportability are
made. 36 The differing levels of procedural due process applicable to
non-citizens at the border and those within the country, however,
derive from the constitutional jurisprudence and therefore probably
still constrain how the government can treat both non-citizens at the
border and those found within the country. 37
In the 1940s and 1950s, the Supreme Court heard several cases in
which the government relied on secret evidence to exclude or deport
three types of immigrants: those who had not yet “entered”; those
who had entered lawfully but no longer held lawful status, and those
who held lawful permanent residence. The first two groups were
determined to receive little protection under the Fifth Amendment,
while the third was entitled to basic due process rights. 38
proceedings. It does not limit the right of excludable aliens detained within United States territory to
humane treatment.”).
34
See, e.g., Yamataya v. Fisher, 23 S.Ct. 611, 614-15 (1903) (holding that the executive cannot deport an
alien who has entered the country, even if allegedly illegally, “without giving him all opportunity to be
heard upon the questions involving his right to be and remain in the United States. No such arbitrary
power can exist where the principles involved in due process of law are recognized.”); Reno v. Flores,
113 S.Ct. 1439, 1449 (1993) ("It is well established that the Fifth Amendment entitles aliens to due
process of law in deportation proceedings.")
35
See, e.g., Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of
Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 936-38 (1995).
36
The INA retains separate provisions for determining whether a non-citizen is "admissible" or
"deportable," but the distinction now turns on whether a non-citizen has been lawfully admitted to the
United States, rather than whether she has "entered" the country. Rosales-Garcia v. Holland, 322 F.3d
386, 391 n.1 (6th Cir. 2003).
37
See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (noting that the “entry” distinction runs
throughout immigration law, such that “certain constitutional protections available to persons inside the
United States are unavailable to aliens outside of our geographic borders. (citations omitted)”). The
question of how the old entry distinction applies after the 1996 Act has not yet been decided by the
Supreme Court.
38
In the case of a woman who had not “entered” the United States but was married to an American
citizen, the Court held that the government could exclude her based on classified national security
evidence. U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). In a similar case, the Court found
that the Attorney General could exclude an alien who was not yet admitted “without a hearing when the
[removal] is based on confidential information the disclosure of which may be prejudicial to the public
interest .” Sh aughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 210-11 (1953). Both Knauff and Mezei were
held at Ellis Island, where they were not considered to have "entered" the U.S. In the second type of
case, the Court determined that the government could use secret evidence to deport a non-citizen who
had entered lawfully but no longer held lawful status, if the disclosure of this information would be
prejudicial to the public interest, safety or security (as determined by the government and the Board of

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The Statutory Framework

Similarly, under current statutory law, non-citizens who have not
been admitted into the United States are entitled to the fewest
statutory safeguards against the use of secret evidence. If the Attorney
General determines based on “confidential information” that a noncitizen “at the border”39 poses a national security risk, he can be
removed without appearing before a judge, let alone seeing or
challenging the evidence against him. 40 While the regulations require
that the government uphold the right to be protected from torture
during this process, they do not contain any guidance on how to
ensure that this right is secured. 41
The government can also present secret evidence in immigration
court against non-citizens who have not been admitted into the United
States as well as those without lawful status who seek permission,
known as “discretionary relief”, to remain in the United States. 42 The
second category includes both non-citizens who were lawfully
admitted but lost their lawful status, for example, by overstaying their
visa as well as those who hold lawful status but may have violated the
INA (for example, by engaging in terrorist activity) and face removal
proceedings to determine whether these actions render them
removable. 43 Because they fear persecution in their home country or
Immigration Appeals). Jay v. Boyd, 351 U.S. 345, 358 (1956). Finally, without reaching the
constitutional question, the Court held that unsworn, ex parte testimony presented by the government to
remove a lawful permanent resident violated Bridges’ right to a fair hearing under the regulations
implementing the Immigration and Nationality Act . Bridges v. Wixon, 326 U.S. 135, 154-57 (1945)
(finding “deportation without a fair hearing which may be corrected on habeas corpus” where “evidence
was improperly received and where but for that evidence it is wholly speculative whether the requisite
finding would have been made.”)
39
The definition of “at the border” that I use here and throughout the paper includes all individuals
subject to expedited removal, and so also applies to non-citizens who enter without inspection and are
caught within 100 miles of the border. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877–
81 (Aug. 11, 2004).
40
INA §235(c)(2)(B)(ii); 8 CFR §235.8(b)(1); see also 8 C.F.R. § 1235.8(d), which provides that even
where an non-citizen suspected of inadmissibility on national security grounds is provided with a
hearing, the immigration judge can order her immediately removed based on new secret evidence if the
judge decides that disclosure of this evidence might harm the public interest, safety, or security.
Moreover, two federal courts have found that where the Attorney General determines based on
confidential information that an unadmitted non-citizen poses a security risk, this individual can be
denied an asylum hearing. Azzouka v. Meese, 820 F.2d 585, 587 (2d Cir. 1987); Avila v. Rivkind, 724
F.Supp. 945, 950 (S.D. Fl. 1989).
41
8 C.F.R. §§ 208.18(d), 235.8(b)(4); CRS Report on CAT. As discussed further below, the United
Nations Convention Against Torture (CAT) and the regulations incorporating this treaty into U.S. law
provide that an individual cannot be removed to a country where she would be in danger of torture.
42
INA § 240(b)(4)(B) (“the alien shall have a reasonable opportunity to examine the evidence against
the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the
Government but these rights shall not entitle the alien to examine such national security information as
the Government may proffer in opposition to the alien’s admission to the United States or to an
application by the alien for discretionary relief under this Act.”).
43
See also INA § 240A(b) (allowing non-citizens unlawfully present to become permanent residents if
(a) they have been in the United States for ten years if their deportation would result in exceptional
hardship to a U.S. citizen or permanent resident spouse, parent, or child or (b) they have been in the U.S.

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because of strong family ties to American citizens, these individuals
can apply to remain in the United States. 44 The Attorney General is
not required to gr ant these requests for lawful status; relief from
removal is at his discretion. 45 In a nutshell, the government can use
secret evidence in immigration court against certain non-citizens who
do not hold lawful status, including asylum seekers and those seeking
permanent residence based on family ties, and against any non-citizen
at the border.
The government faces few procedural hurdles in presenting secret
evidence against these non-citizens in immigration court. The only
requirement is that the information be relevant, and the government
state that it is classified on national security grounds. 46 The
Immigration Judge must inform the non-citizen that the government
has presented classified information to the court. In asylum cases, the
agency providing the secret evidence may create a non-classified
summary for the asylum seeker, if it can protect the confidential
information and its sources. 47 In applications for permanent
for three years and they or their U.S. citizen child has been battered or subjected to extreme cruelty by a
U.S. citizen or permanent resident spouse or parent, and removal would result in extreme hardship to the
non-citizen, her child, or her parent); INA § 245(i) (allowing adjustment to status of permanent resident
for non-citizens unlawfully present who are beneficiaries of family-based visas, on the basis of their
status as a child or sibling of a U.S. citizen or a spouse or unmarried child of a permanent resident, if that
visa petition was filed on or before April 30, 2001); INA § 208(c)(1) (allowing non-citizens granted
asylum to remain in the United States); INA § 241(b)(3) (prohibiting removal, except under very limited
circumstances, of non-citizen whose life or freedom would be threatened in their country of origin); 8
C.F.R. §§ 1208.16(c), (d), 1208.17(a) (prohibiting removal of non-citizens to a country in which it is
more likely than not that they would be tortured).
44
INA 208; INA 241(b)(3)(A); INA 240(b)(4)(B); 8 C.F.R. §1003.19(d). U.S. law provides two distinct
forms of relief for refugees: asylum, which provides benefits including eventual eligibility for permanent
residence and citizenship and the right to bring one's spouse and children to the U.S. as asylees, and
withholding of removal, which does not provide either of these benefits and requires a successful
applicant to meet a higher legal standard but is available to asylum seekers who have missed a statutory
one-year filing deadline or committed certain crimes and are therefore not eligible for asylum. Because
withholding is mandatory rather than discretionary relief, there is no statutory basis for the use of secret
evidence against an admitted non-citizen seeking withholding. Because asylum and withholding hearings
are combined, it is likely that in practice secret evidence is used against admitted non-citizens seeking
withholding.
45
Note that withholding of removal and relief under the Convention Against Torture are not
discretionary forms of relief. But because requests for these forms of relief are most often heard in
conjunction with asylum claims, it is likely that secret evidence is used against non-citizens seeking
these forms of relief.
46
INA §240(b)(4)(B); 8 C.F.R. §1240.11(a)(3). The determination of relevance and classified status
must be made by the Director of the Bureau of Citizenship and Immigration Services, the Commissioner
of the Bureau of Customs and Border Protection, or the Assistant Secretary for the Bureau of
Immigration and Customs Enforcement as defined in 8 C.F.R. § 1.1(d).
47
8 C.F.R. §1240.11(c)(3)(iv). Although withholding of removal is not a discretionary form of relief
from removal, because the government must grant this status to those who are eligible, the determination
of withholding relief is wrapped up in the asy lum decision. As a result, the INA also authorizes the
government to use secret evidence in withholding of removal cases. The regulations authorizing the use
of secret evidence in asylum hearings do not explicitly mention applications for relief under the
Convention Against Torture. While the INA authorizes the use of secret evidence in all admissibility
proceedings, it limits further use to applications for discretionary relief. Since relief under the

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residence, the Immigration Judge may inform the non-citizen of the
general nature of the evidence and allow the presentation of opposing
evidence, if she can safeguard the information and its source. 48 In
both cases, while the government need only invoke national security
concerns to withhold evidence, there is no obligation on the part of
the judge or the government to provide even a summary of this secret
evidence to the non-citizen.
A thus far unused provision of the INA authorizes the use of
secret evidence against any non-citizen—even a permanent
resident—suspected of links to terrorism. In 1996, as part of the
Antiterrorism and Effective Death Penalty Act, Congress created an
“Alien Terrorist Removal Court” to remove non-citizens whom the
Attorney General alleges to be terrorists. 49 This court has never been
used, 50 but the legislation constructing it provides for the use of secret
evidence. In this court, the government may withhold evidence “if
disclosure would endanger national security.”51 The judge then must
approve a government-prepared unclassified summary of the
information. 52 If the judge decides that this summary would likely
cause serious harm to national security or threaten a person’s life or
health, the government can present the secret evidence without
providing the summary to the non-citizen. 53 Again, permanent
residents are provided with greater protections than other noncitizens: The judge must appoint a special attorney who can review
the classified information and otherwise assist a permanent resident
who faces national security charges before this court. 54 During the
hearing, any part of the argument that refers to classified information
may be heard ex parte and in camera. 55 As in immigration court, the
Federal Rules of Evidence do not apply. 56
It is important to note that existing regulations can protect
sensitive national security information through the use of protective
orders in immigration court. 57 To obtain a protective order, the
government must establish a “substantial likelihood” that the
information to be protected “will, if disclosed, harm the national
Convention Against Torture is mandatory for eligible non-citizens, there is no statutory basis for the use
of secret evidence against an admitted non-citizen seeking relief under the Convention Against Torture.
48
8 C.F.R. §1240.11(a)(3).
49
INA §§501-07.
50
Robert M. Chesney, Panel Report: Beyond Article III Courts: Military Tribunals, Status Review
Tribunals, and Immigration Courts, 5 CARDOZO P UB. L., POL., & ETHICS J. 27, 33 (2006) (summarizing
presentation by Brian D. Boyle, who was the Principal Deputy Associate Attorney General, Department
of Justice, from 2003-2005).
51
INA §504(e)(1)(A).
52
INA §504(e)(3).
53
INA §504(e)(3)(E).
54
INA §504(e)(3)(F).
55
INA §504(f).
56
INA §504(h).
57
8 C.F.R. § 1003.46 (2007).

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security” interests of the United States. 58 The non-citizen can
respond, but may be prevented from seeing the evidence at issue. 59
Moreover, the judge must give “appropriate deference” to senior
officials in national security agencies in deciding whether disclosure
of the information at issue will harm the national security interests of
the United States. 60
Once issued, a protective order may prohibit the non-citizen, her
attorney, and any witnesses from divulging the information, and also
requires secure transmission and storage of the classified materials. 61
The immigration judge may impose additional requirements to
protect the information from public disclosure. 62 The penalties for
transgression are severe: if the information is revealed, the noncitizen will face removal unless one of a few stringent exceptions
applies. 63 Her representative can also be suspended from practice
before the immigration courts and asylum offices. 64
Challenges to the Use of Secret Evidence in Immigration Proceedings

The government has presented secret evidence in immigration
hearings for well over fifty years, based on various provisions of the
INA. 65 The current statutory authority for using secret evidence,
outlined above, was added to the INA by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 66 The
only federal court that has heard a constitutional challenge to these
provisions held that the use of secret evidence to detain a non-citizen
was unconstitutional “as applied”, but did not address the use of
secret evidence to remove a non-citizen.
The court held that constitutional due process protections applied
to the plaintiff, Hany Kiareldeen, as a resident, even though his visa

58

8 C.F.R. § 1003.46(a).
8 C.F.R. § 1003.46(b)–(c). The government must submit a motion requesting a protective order, and
may attach the information it wishes to protect in the submission to the court but not to the non-citizen.
Id.
60
8 C.F.R. § 1003.46(d). (ok)
61
8 C.F.R. § 1003.46(f). (ok)
62
8 C.F.R. § 1003.46(f)(2)(iv).
63
8 C.F.R. § 1003.46(i). This penalty applies only to discretionary relief; mandatory relief, such as
withholding of removal or protection under the Convention Against Torture can be awarded. To meet an
exception, the non-citizen must establish by clear and convincing evidence that the disclosure was
caused by extraordinary and extremely unusual circumstances or was beyond the control of the noncitizen and her representative, and the non-citizen must cooperate fully with any investigation about the
breach of the protective order. 8 C.F.R. § 1003.46(i).
64
8 C.F.R. § 1003.46(i). (ok)
65
See supra note 38.
66
See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, §§
302(a), 304(a)(3), 354, 110 Stat. 3009-546 (1996) (codified in scattered sections of 8 and 18 U.S.C.)
(adding INA § 235(c) and § 240(b)(4)(B) and amending INA §§ 501, 502, 504, 505); 67 Fed. Reg.
36,799, 36,802 (May 28, 2002) (adding 8 C.F.R. §1003.46); 62 Fed. Reg. 10,312, 10,358 (Mar. 6, 1997)
(adding 8 C.F.R. §235.8 and § 1235.8); and 62 Fed. Reg. at 10,367 (adding 8 C.F.R. §1240.11).
59

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had expired. 67 Using the Mathews v. Eldridge balancing test, the court
held that Mr. Kiareldeen’s interest in his physical liberty should be
accorded great weight, that the risk of erroneous deprivation of his
rights was high because of the one-sided nature of secret evidence,
and that while the government’s interest in national security was
weighty, it had failed to establish that Mr. Kiareldeen actually posed a
threat to national security. 68 Finding a due process violation, the court
ordered Mr. Kiareldeen’s release from detention. 69
This was a victory for Mr. Kiareldeen and helpful for other noncitizens who have “entered” the United States, but because it was not
a facial challenge, the secret evidence provisions of the INA and its
regulations remain on the books. Immigrants’ rights advocates tried
to remove these sections of the statute through the Secret Evidence
Repeal Act (SERA), which was introduced in Congress in 1999 and
2001.70 The most recent version of this bill provided safeguards to
ensure that information was properly classified, and allowed the noncitizen or the government to move to refer to federal district court any
case in which classified information was introduced. 71 The federal
court would then apply the Classified Information Procedures Act
(CIPA), which governs the use of classified information in criminal
cases, to the immigration proceedings. The bill also sought to
eliminate the Alien Terrorist Removal Court, and to prohibit the use
of secret evidence against permanent residents, asylum seekers, and
certain other non-citizens. 72 The Secret Evidence Repeal Act had
bipartisan support, and George W. Bush pledged in his presidential
campaign to work with the bill’s sponsors “to ensure respect for the
law.”73 Introduced in its most recent incarnation almost six months
before September 11, SERA failed to pass, and has not been reintroduced.
67

See infra note 88--90 and accompanying text.
Kiareldeen, 71 F.Supp.2d at 413-14.
Kiareldeen, 71 F.Supp.2d at 414.
70
H.R. 2121, 106th Cong. (1999); H.R. 1266, 107th Cong. (2001).
71
H.R. 1266, 107th Cong. § 3(a) (2001).
72
H.R. 1266, 107th Cong. §§ 3(b), 4, 5 (2001). SERA also prohibited the use of secret evidence against
non-citizens paroled into the U.S., as well as in bond proceedings, which are immigration hearings in
which a detained non-citizen seeks to post a bond to be released from detention. CIPA, however, is not
an ideal solution to the problem of secret evidence in immigration court. As Ellen Yaroshefsky explains,
was created to prevent “gray-mailing”, or threats by government officials or intelligence operatives to
release confidential information unless the charges against them were dismissed – so the statute allows
defendants to use classified materials in their defense under a protective order and other conditions.
Ellen Yaroshefsky, The Slow Erosion of the Adversary System, 5 Cardozo Public Policy, Law, and
Ethics Journal 203, 209 (2006). In the immigration context, the government wants to present classified
information – the non-citizen is usually unaware of the existence, let alone the content of this
information. Moreover, CIPA is drafted for federal court use, whereas secret evidence in the immigration
context is presented in immigration court. Because of these differences in motivation and application,
CIPA is not a perfect fit for the problem of secret evidence in immigration court.
73
American Civil Liberties Union, Letter to President Bush on the Use of Secret Evidence in
Immigration Proceedings, July 13,2001 (quoting Governor George W. Bush's Record of Inclusion),
available at http://www.aclu.org/news/NewsPrint.cfm?ID=279&c=98.
68
69

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We know that the Bush administration is still using secret
evidence in immigration court, but we can only guess at the true size
of this problem. Reports of secret evidence in immigration court are
solely anecdotal – we hear of the few cases that are picked up by the
media but do not know the parameters of the iceberg of cases that
remains below the surface of public attention. Perhaps because the
current administration has claimed that it does not use secret evidence
in immigration court, 74 a claim we know to be false, 75 it has not
provided statistics on this practice since 2000. 76 Moreover, because
records of immigration proceedings are not publicly accessible, it is
not possible to research this question independently. 77 While some
cases are publicized, likely where the non-citizen has a savvy
74

American Civil Liberties Union, Letter to President Bush on the Use of Secret Evidence in
Immigration Proceedings, July 13, 2001, available at
http://www.aclu.org/news/NewsPrint.cfm?ID=279&c=98 (John Ashcroft, testifying before the House
Judiciary Committee in his official capacity as Attorney General, stated that the Bush Administration
had not used secret evidence in immigration court as of June 2001). However, a 2005 Washington Post
article cites immigration authorities on background stating that “they sometimes turn to immigration
charges rather than terrorism charges because a case might be based on classified information that they
cannot reveal in court without damaging other investigations.” Mary Beth Sheridan, Immigration Law
as Anti-Terrorism Tool, Wash. Post, June 13, 2005, at A01, available at
http://www.washingtonpost.com/wp-dyn/content/article/2005/06/12/AR2005061201441_pf.html.
75
See Abou-Elmajd v. Gonzales, No. Civ.06 1154 KI, 2006 WL 2994840 (D. Or. Oct. 19, 2006) (lawsuit
challenging use of “secret, undisclo sed memo” in determining application for permanent residence and
work authorization); Arar, supra note 10 (immigration case resulting in deportation to Syria based on the
government’s finding that Arar was a member of Al Qaeda, even though Arar was denied an opportunity
to refute and even see the evidence against him); Toope, supra note 19 and accompanying text;
Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) (immigration case in which government evidence
was withheld from Nadarajah, his lawyers, and the judge); See also Nina Bernstein, Music Scholar
Barred from U.S., But No One Will Tell Her Why, N.Y. Times, Sept. 17, 2007, at B1 (detailing story of
Nalini Ghuman, a British national and assistant professor at Mills College in Oakland, whose residency
visa was revoked without explanation in August 2006 and quoting Ghuman, who had lived and worked
in the United States for 10 years, as stating “I don’t know why it’s happened, what I’m accused of. . .
.There’s no opportunity to defend myself. One is just completely powerless.”); Nina Bernstein, Girl
Called Would -Be Bomber Was Drawn to Islam , N.Y. Times, Apr. 8, 2005, at B1 (stating that
government evidence presented in immigration court alleging that two teenage girls were potential
suicide bombers was “withheld from the girls and anyone who represents them under a ‘protective order’
that F.B.I. investigators obtained from the immigration court….”).
76
Currently, there are no available statistics as to the number of immigration cases per year in which
secret evidence is used. The Washington Post attempted to obtain the names of the more than 500
persons estimated to have been charged in national security investigations between 2003 and 2005, but
Homeland Security officials refused the Post’s request. Mary Beth Sheridan, Immigration Law as AntiTerrorism Tool, Wash. Post., June 13, 2005, at A01. In 2000, the government was using secret evidence
in eleven cases; in 1998, the government said it used secret evidence in approximately twenty cases per
year. Testimony of Bo Cooper, INS General Counsel, Before the Committee on the Judiciary of the U.S.
House of Representatives Concerning H.R. 2121, the “Secret Evidence Repeal Act,” 2000 WL 684411
(May 23, 2000); The National Security Considerations Involved in Asylum Applications: Hearings
Before the Senate Judiciary Committee on Technology, Terrorism and Government Information, 105th
Cong., Oct. 8, 1998 (testimony of Paul Virtue, INS General Counsel). These numbers could include at
most only a year and a half of statistics after the implementation of IIRIRA. The government also uses
secret evidence to detain non-citizens; a discussion of the use of secret evidence in immigration bond
hearings is beyond the scope of this paper.
77
While a Freedom of Information Act request might reveal some of these cases, the records of asylum
and Convention Against Torture cases are generally sealed to protect the applicant, so any such inquiry
would necessarily be incomplete.

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attorney, the government may be using secret evidence in many more
immigration proceedings that we do not know about.
We do know that efforts to expand the use of secret evidence in
immigration proceedings are underway. In June 2007, the Senate
considered an amendment to the immigration reform bill that would
have authorized DHS to use secret evidence against permanent
residents applying to become citizens. 78 A similar clause allowing
the use of secret evidence in naturalization proceedings was presented
in immigration bills in the House and the Senate in 2006.79 While the
amendment failed for other reasons, Congress appears poised to
expand authorization of secret evidence in future immigration reform
efforts.
THE TROUBLE WITH SECRET EVIDENCE

The misuse of secret evidence – namely, the presentation of
unreliable and inaccurate information, particularly where the risk of
revelation to the non-citizen has not been established – in
immigration proceedings poses problems on at least three levels:
individual, societal, and global. On an individual level, non-citizens
and their families have sustained serious harm, including extended
detention and family separation. On a societal level, this practice
seriously damages our principles of procedural fairness and risks
alienating Arab, Muslim, and South Asian immigrant communities.
Finally, on a global level, the perception that Arabs, Muslims, and
South Asians are unfairly treated in immigration proceedings will
diminish America’s moral authority and thus our leadership capacity
on the world stage.
Harm to Individuals

Over the past decade, DHS has presented startlingly inaccurate
secret evidence against several non-citizens in immigration court. 80 In
the 1990s, go vernment lawyers relied on mistranslated documents,
withheld as classified documents that were unclassified, and failed to
corroborate evidence based on rumors, prejudiced sources, and
stereotyping. The very nature of secret evidence eliminates the
adversarial system’s traditional test of evidentiary reliability and
accuracy: confrontation. Moreover, the broad discretion awarded to
the government in these cases combined with a strong political
incentive to appear effective in combating terrorism seem to have
inspired government lawyers to present evidence without first testing
78

S. Amdt . 1184, 109 th Cong. §204 (2007) (introduced by Senator Cornyn on May 23, 2007 as an
amendment to S.1348; rejected by Senate on June 6, 2007).
79
See S. 2611, 108 th Cong. § 204 (2006); H.R. 4437, 108th Cong. §609 (2006).
80
For additional examples, see Susan M. Akram, Scheherezade Meets Kafka: Two Dozen Sordid Tales of
Ideological Exclusion, 14 Geo. Immigr. L.J. 51, 76-81 (1999).

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it for accuracy and reliability. Despite the grave harm suffered by
non-citizens wrongly accused of terrorist activity in these cases, the
government continues to use apparently untested secret evidence in
immigration proceedings. In recent cases, the government has
withheld evidence from even the judge, eliminating any external
assessment of this information, and has prevented the non-citizen
from rebutting even the charges against him. 81
In the case of Nasser Ahmed, for example, the government relied
on misclassified information, a biased source, and a mischaracterized
document to make its case. 82 As a result, Mr. Ahmed, an Egyptian
asylum seeker and father of two, was detained for three and a half
years. 83 During Mr. Ahmed’s asylum hearing, the immigration judge
determined that he was eligible for asylum but that he was a danger to
national security based on secret evidence presented by the
government. 84 Once the evidence was declassified, 85 Mr. Ahmed’s
lawyers were able to refute the charges against him and to show that a
crucial government witness against Mr. Ahmed was seriously
prejudiced against him. 86 The Immigration Judge then determined
that Mr. Ahmed was not a threat to national secur ity and granted his
asylum claim, finding that “[t]he use of secret evidence against a
party, evidence that is given to, and relied on, by the IJ and BIA but
kept entirely concealed from the party and the party’s counsel, is an
obnoxious practice, so unfair that in any ordinary litigation context,
its unconstitutionality is manifest.”87
In the case of Hany Kiareldeen, the government used a noncitizen’s ex-wife as a secret witness against him; it is hard to imagine
a more biased evidentiary source. 88 Suspecting that his ex-wife was
81

See infra discussion of Maher Arar case, notes 10--18 and accompanying text.
Ahmed, who admired Sheik Omar Abdel Rahman, a Muslim cleric convicted of conspiring to bomb
several New York landmarks, adamantly denied any connection with Rahman’s terrorist organization
and testified that he is opposed to violence. In re Ahmed, No. A90-674-238, slip op. at 3 (N.Y., Immigr.
Ct. July 30, 1999) [hereinafter Ahmed Decision] (decision following remand) (on file with author).
83
Id., at 14-15; In re Ahmed, No. A90-674-238 (B.I.A. Nov. 13, 1999) (bond redetermination decision).
84
Ahmed Decision, supra note 82, slip op. at 1.
85
After Mr. Ahmed’s lawyers brought a constitutional challenge on the use of secret evidence against
him, the government provided a full summary of the charges against him and a declassified version of
the documentary evidence. Anthony Lewis, Op-Ed., Abroad at Home: Janet Reno’s Test, N.Y. Times,
Nov. 23, 1999, at A27.
86
This witness’s employment and opportunity to remain in the United States were threatened by Mr.
Ahmed’s complaints against him. Ahmed Decision, supra note 82, slip op. at 6-7. The government had
charged that Mr. Ahmed published a letter given to him by the imprisoned Sheik Abdel Raman that led
to a terrorist attack in Egypt. Mr. Ahmed’s lawyers showed that the letter had no link to the attack. Id,
slip op. at 4-5. In addition, included in the allegedly “classified” information was a statement from an
FBI agent that Mr. Ahmed should be detained because his release would make him “more well known,
lending to his credibility.” Id., classified at 8.
87
Ahmed Decision, supra note 82, slip op. at 14-15 (quoting Haddam v. Reno, 54 F. Supp. 2d 588, 598
(E.D. Va. 1999).
88
Mr. Kiareldeen, a Palestinian father of one married to a U.S. citizen, sought to become a permanent
resident. The government jailed him based on his former wife’s assertions to local police that he was
linked to dangerous Muslim organizations. Matthew Purdy, Our Towns: Custody Fight Disguised as
82

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the source of the evidence against him, Mr. Kiareldeen called her as a
witness, but the government repeatedly failed to produce her. 89 After
almost two years in detention, a federal judge eventually freed Mr.
Kiareldeen, finding that the “most detailed” piece of evidence against
him “identifie[d] not a single source and [wa]s barely over two
pages.”90 While Mr. Kiareldeen was imprisoned, his former wife
absconded with his daughter; it took him over three years to find
her. 91 The government’s reliance on only one obviously biased source
in this case transformed Mr. Kiareldeen’s immigration proceedings
into a weapon in a custody battle.
In a third case from the 1990s, the government used wrongly
classified evidence against Dr. Ali Yasin Mohammed-Karim. 92
Relying on this secret evidence, the Immigration Court held that Dr.
Karim could not apply for asylum because he posed a risk to national
security. 93 After several senators wrote a complaint letter to Attorney
General Reno, the government announced that most of the evidence
in Dr. Karim’s case had been classified “in error.”94 Former CIA
Director James Woolsey, who represented Dr. Karim, characterized
much of the secret evidence as, “vague suspicions, some the result of
lies prompted by jealous ies among the exiles, and some mistakes in
translation during Federal Bureau of Investigation interviews of the
exiles.”95
Terror Case, N,Y. Times, Jan. 29, 2003, at B1. The provision of the INA that the government alleges
allows it to detain non-citizens based on secret evidence is topically related to but beyond the scope of
this article. The language of these provisions does not expressly authorize the use of secret evidence,
while the provisions allowing the use of secret evidence to deport non-citizens do. The Kiareldeen court
did not decide this question but assumed for the constitutional analysis t hat the provisions do allow for
the use of secret evidence in bond hearings. Kiareldeen v. Reno, 71 F. Supp. 2d 402, 408 (D.N.J. 1999).
89
Kiareldeen, 71 F. Supp. 2d at 417.
90
Kiareldeen, 71 F. Supp. 2d at 413.
91
Purdy, supra note 88.
92
Because the agencies that provided the classified information did not create summaries of the
information, the government claimed that they could not provide evidence or summaries to Dr. Karim.
In re Ali Yasin Mohammed-Karim, No. A76-200-431, slip op. at 4 (Cal. Immigr. Ct. June 21, 2000)
[hereinafter Karim Decision] (decision and order of the immigration judge). The use of secret evidence
against Dr. Karim was particularly surprising, as the U.S. government had evacuated him from northern
Iraq to protect him from Saddam Hussein. Id., slip op. at 2-3.
93
Id., slip op. at 4.
94
Karim Decision, supra note 92, slip op. at 5; Andrew Cockburn, The Radicalization of James Woolsey,
N.Y. Times Mag., July 23, 2000, at 26, 29. Dr. Karim retained James Woolsey, Jr., the former Director
of the Central Intelligence Agency, to represent him in his appeal. Mr. Woolsey called the INS, CIA,
FBI, and the Department of Justice, all who ignored his requests to discuss the evidence against his
client. Cockburn, supra . Moreover, after the court re-heard Dr. Karim's case, the government moved to
reopen these hearings to submit what they alleged to be “new evidence.” In reality, this evidence
consisted of certified copies of the tapes of Dr. Karim's and his brother's testimony during immigration
proceedings. The court denied the motion to reopen. Karim Decision, supra note 92, slip op. at 5.
95
Ronald Smothers, U.S. Bars or Expels Suspect Immigrants On Secret Evidence, N.Y. Times , Aug.
15, 1998, at A1. Immigrants have charged the government with using distorted and erroneous
translations in other types of cases. In one example, a charity closed down for alleged donations to
terrorist groups charged the FBI with mistranslating documents; an independent translating service found
“67 discrepancies or errors in translation in a four-page F.B.I. document used in the case.” Eric
Lichtblau, Islamic Charity Says F.B.I. Falsified Evidence Against It, N.Y. Times, July 27, 2004, at A12.

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Just a few examples illustrate the government’s failure to test its
evidence for accuracy and reliability. An FBI agent found it
suspicious that Dr. Karim had traveled to Iran “many times” in the
1970s. The agent failed to consider that the Shah was in power at this
time and that Dr. Karim was a child throughout this decade. 96 Several
agents alleged that Dr. Karim was a security threat because he did not
use the name Ufayli, which indicates his membership in the Fayli
Kurd tribe (a clan including approximately 500,000 Iraqis). These
agents, who did not know the origins of this name, suspected that he
dropped the name to avoid association with his cousin, whom they
believed to be “connected” to the Iranian intelligence. In reality, Dr.
Karim and his cousin shared the “Mohammed-Karim” portion of his
name, which came from his grandfather; dropping the name Ufayli
did not hide his relationship with his cousin. 97 At no time did Dr.
Karim conceal or deny his relationship to his cousin; moreover, a
CIA agent with in-depth knowledge of Iraq and personal knowledge
of Dr. Karim’s cousin testified that the cousin was never affiliated
with Iranian intelligence. 98 Not only did the government fail to
examine the basic assumptions of the evidence, but it did not even use
its own experts to test the accuracy of the claims against Dr. Karim.
After hearing Dr. Karim’s rebuttal evidence and the crossexaminatio n of the government’s witnesses, the court determined that
he was not a threat to national security. 99 The court granted asylum
and protection under the Convention Against Torture, 100 noting that
“[t]he low burden of proof on the Government, combined with an
initial veil of secrecy has resulted in the lack of disclosure of
significant factual issues which have only been revealed through
declassification and cross-examination of the evidence.”101
In another recent case, the government relied on evidence that it
failed to present even to the judge; as a result, Ahilan Nadarajah was
detained for almost five years. Mr. Nadarajah is an ethnic Tamil—a
group that suffers well-documented persecution at the hands of the
Sri Lankan government—from the war-torn Jaffna peninsula in
northern Sri Lanka. 102 When he tried to enter the United States,
A Justice Department investigation found that the FBI failed to ensure that its translators were providing
accurate translations, ignoring the agency's own policy requirement that these translators un dergo
periodic proficiency exams. Eric Lichtblau, F.B.I. Said to Lag on Translations of Terror Tapes, N.Y.
Times, Sept. 28, 2004 at A1.
96
Karim Decision, supra note 92, at 11.
97
Id. at 12--18.
98
Id. at 19, 21--25.
99
Id. at 105.
100
Id. at 115.
101
Id. at 122.
102
See generally, U.S. Department of State, Country Reports on Human Rights Practices 2001: Sri
Lanka (2002) (documenting Sri Lankan army, security forces, and police torture and killings of ethnic
Tamils). Starting when he was sixteen years old, the Sri Lankan Army (“SLA”) and the Elam People’s
Democratic Party (“EPDP”), a political party associated with the government, arrested, detained, and

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immigration officials detained Mr. Nadarajah and placed him in
removal proceedings. After delaying the removal hearing for eighteen
months, the government alleged that a “confidential informant” told
them that Mr. Nadarajah was associated with the Liberation Tigers of
Tamil Eelam (L.T.T.E. ), a designated terrorist organization. 103
Nonetheless, the judge granted Mr. Nadarajah asylum.
On the government’s motion, the case was re- heard over a year
later. 104 A DHS Special Agent testified that the confidential informant
told him that Mr. Nadarajah had lived in an L.T.T.E.-controlled area,
and therefore could not have left Sri Lanka without the support and
approval of the L.T.T.E. 105 In addition, the agent claimed that he had
received an anonymous letter that corroborated the confidential
informant’s statements. 106 The informant also alleged that Mr.
Nadarajah placed a call, along with a female L.T.T.E. member
detained in the same facility, to order tha t someone in Canada be
killed. 107
Because the government’s evidence was so slipshod, Mr.
Nadarajah’s lawyers were able to refute it without seeing it. 108 His
expert witness explained that the Sri Lankan army actually controlled
the area of Sri Lanka from whence Mr. Nadarajah came. 109 On crossexamination, the government agent could not explain how Mr.
Nadarajah could have made a phone call with a woman detained in
the same facility when his facility was gender-segregated. 110 The
judge again granted Mr. Nadarajah’s asylum claim, but the
beat Mr. Nadarajah three times, severely torturing him on two of these occasions. The army hung Mr.
Nadarajah upside-down, stuck needles in his fingernails, and beat him with rubber hoses and rubber
pipes filled with sand. Nadarajah supra note 75 at 1072--73. His mother secured his release each time
with a bribe; after the third detention, an army officer told him that they would not release him the next
time they arrested him. Mr. Nadarajah fled the country, arriving in the United States two months later. In
the Matter of Ahilan Nadarajah, In Removal Proceedings, Brief in Opposition to Government's Appeal
and in Support of Respondent's Cross-Appeal, at 3 (on file with author) (hereinafter “Nadarajah Brief”)..
103
Nadarajah supra note 75 at 1073.
104
Id. at 1074. All the while, Mr. Nadarajah languished in detention—a difficult experience for anyone,
and particularly traumatic for a survivor of torture. See, e.g., Craig Haney, PhD, Conditions of
Confinement for Detained Asylum Seekers Subject to Expedited Removal, in Stu dy on Asylum Seekers in
Expedited Removal, As Authorized by Section 605 of the International Religious Freedom Act of 1988,
Vol.
II,
178,
191-99
(2005),
available
at
http://www.uscirf.gov/countries/global/asylum_refugees/2005/february/conditionConfin.pdf (detailing
some of the conditions found in detention centers).
105
Nadarajah, supra note 102 at 1074.
106
Id. at 1074.
107
Id. at 1074.
108
The government did not provide Mr. Nadarajah, his lawyers, or even the judge with e-mails or
recordings of the telephone conversations with the informant or with the anonymous letter that he
claimed corroborated the informant’s statements. Mr. Nadarajah and his lawyers were not able to cross
examine the government informant; the judge denied their motion to compel his testimony because the
government witness claimed that his life would be at risk. In re Ahilan Nadarajah, In Removal
Proceedings, I. & N. Dec., at 4 (2004) (on file with author) (hereinafter IJ Decision).
109
Nadarajah, supra note 102 at 1074.
110
Id.

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government refused to release him from detention. 111 Granting his
habeas corpus appeal, the federal court of appeals found that the
government’s detention of this refugee for almost five years was
“unreasonable, unjustified, and in vio lation of federal law.”112
Societal Harms
The misuse of secret evidence in immigration proceedings can
harm American society as a whole in three main ways: by
diminishing the legitimacy of the American justice system, by
increasing the threat of terrorism, and perhaps most importantly, by
breaching fundamental societal norms. On the legitimacy issue, the
perceived unfairness of this practice will make non-citizens less likely
to comply with the immigration process and perhaps the American
justice system as a whole. Moreover, the diminution of due process
rights of non-citizens may lead to greater acceptance of abridgment of
the procedural rights of citizens. On the security front, as this unfair
treatment increasingly alienates Arab, Muslim, and South Asia n noncitizens, they are both less likely to provide crucial assistance in
combating terrorism, and, in some cases, will be more likely to
support terrorist organizations. Finally, these violations contradict
deeply held American norms of procedural fairness.
The government’s use of untested secret evidence against noncitizens will likely lead to diminished compliance with the
immigration process and possibly the justice system more generally.
In a study of compliance with the police and courts, social
psychologist Tom R. Tyler found that “people’s willingness to accept
the constraints of the law and legal authorities is strongly linked to
their evaluations of the procedural justice of the police and the
courts.”113 While the threat of force underlies law enforcement,
institutions are most effective when they gain the consent of people
over whom they exercise authority. “People are more likely to adhere
to agreements and follow rules over time when they ‘buy into’ the
decisions and directives of legal authorities.”114 Moreover, people are
more likely to obey legal authorities if they believe that these officials
are legitimate. These evaluations of legitimacy rest upon judgments
as to whether officials have treated individuals and other members of
their community fairly. 115
The consequences of these findings for the immigration process
are obvious; if non-citizens believe that immigration officials and
111

Id. at 1074--75.
Id. at 1084.
113
Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 CRIME & JUSTICE
283, 284 (2003).
114
Id. at 286.
115
Id. at 286.
112

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judges have acted unfairly towards members of their community, they
will be less lik ely to comply with the system. So, for example, fewer
non-citizens are likely to obey removal orders, uphold immigration
laws, and even attend immigration hearings. 116 Moreover, noncitizens may begin to avoid interactions with any government official
and to mistrust the justice sys tem as a whole. This outcome will
place serious obstacles in the path of enforcing immigration laws and
possibly of law enforcement more generally. 117
The U.S. government’s violations of due process rights of noncitizens may also lead to breaches of the due process rights of
citizens. The government has already argued that a U.S. citizen can
be detained based on secret evidence. 118 As the idea that it is
acceptable to treat non-citizens in a way that derogates from human
rights treaties that bind the United States becomes incorporated into
the national psyche, it is a short step to say that the due process rights
of certain U.S. citizens can also be violated in pursuit of the war on
terror. This risk is particularly high in administrative tribunals, such
as military or other specialized courts, in which the federal or state
rules of procedure and evidence do not apply.
By treating non-citizens unfairly in immigration proceedings, the
United States alienates community members who might otherwise
provide useful information on terrorist threats. 119 As Kerwin and
Stock note, “[l]aw enforcement depends on the cooperation of
immigrant communities to provide them with intelligence on
116

See, e.g., Alfonso Chardy, Detentions lead some immigrants to fear day in court, Miami Herald (Oct.
4, 2006) (discussing new policy of detaining all immigrants at the beginning of removal proceedings in
Miami immigration court, whether or not they had a criminal record and before they had been ordered
removed, an Immigration Judge said that “the number of no-shows in court increase when talk spreads
through the community about court detentions.” This policy was also criticized by Immigration Judge
Denise Slavin, President of the National Association of Immigration Judges.)
117
See, e.g., Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J.
Const. L. 1084, 1115 (2004) (explaining that “measures [that] discourag[e] immigrants from
communicating with police and other local officials . . . [deny] local police the community cooperation
on which the law enforcement officials depend.”)
118
See, e.g. Carol D. Leonnig, U.S. Offers Judge Secret Evidence To Decide Case, Wash. Post, at B02,
Feb. 12, 2005 (where the government argued for the need to use secret evidence against a man who was
arrested in Saudi Arabia and not publicly charged with any crimes).
119
Arab and Muslim groups have repeatedly expressed concern about the use of secret evidence in
immigration court. See, e.g., Arab-American Anti- Discrimination Committee, Secret Evidence Creeps
Back into Senate Immigration Debate (June 27, 2007), available at
http://www.adc.org/index.php?id=3123&type=100 (expressing concern about proposed expansion of
use of secret evidence); Council on American Islamic Relations, A Decade of Growth: CAIR Tenth
Anniversary Report, 1994-2004 at 16 (2004), available at
http://www.cair.com/Portals/0/pdf/10th_anniversary_report.pdf (criticizing 1995 anti-terrorism bill that
“allowed resident aliens to be deported . . . on the basis of secret evidence without due process.”); ArabAmerican Anti-Discrimination Committee, Members of Congress, Victims to Demand an End to Secret
Evidence in American Courts (Feb. 14, 2001), available at
http://www.adc.org/index.php?id=510&type=100; Council on American-Islamic Relations, Executive
Summary: The Status of Muslim Civil Rights in the United States 1998 (1998), available at
http://www.cair.com/CivilRights/CivilRightsReports/1998Report.aspx (noting that “ American Muslims
are apprehensive about community members held under so-called secret evidence procedures”).

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suspicious persons or terrorist plots.”120 In interviews with counterterrorism experts, the authors learned that immigrant communities
can play a vital “early warning” role in alerting intelligence agencies
of possible threats, but that non-citizens are not likely to assist when
they believe that they are not being protected or are being targeted by
the government. 121 The perception that the government is using
secret evidence unfairly against members of the Arab, Muslim, and
South Asian immigrant communities will actually make America less
safe by drying up sources of crucial national security intelligence.
Alienation of immigrant communities also increases the
possibility that members of these groups will be drawn into terrorist
activities. Several studies of race relations in Europe have found that
assimilation is “a major factor in reducing support for violence
among immigrant communities.”122 The misuse of secret evidence
against members of certain populations may lead those individuals
and their communities to believe that the immigration process is
unfairly discriminatory towards them, and could, in some cases, push
non-citizens to join terrorist groups. This outcome could again
threaten our safety; we should instead be making every effort to
integrate non-citizens present in the United States. 123
Of course, changing perceptions of unfairness the immigration
system is only one step of many in increasing immigrant
communities’ cooperation with law enforcement. Anger over the war
in Iraq, bias against Arab and Muslim communities in the popular
media, and hate crimes commited against Arabs, Muslims, and South
Asians all contribute to alienation of these immigrant communities,
and must all be resolved to reach a maximum level of cooperation.
However, these other factors do not diminish the important role of
reforming the immigration system in integrating immigrant
communities.
Beyond these potential consequences, the right to confrontation is
a fundamental component of the American legal system. Because our
adversary system depends on the parties to test the quality of the
evidence presented, confrontation rights have historically been
strongly protected in U.S. law. 124 Indeed, the primary purpose of the
120

Donald Kerwin & Margaret D. Stock, National Security and Immigration Policy: Reclaiming Terms,
Measuring Success, and Setting Priorities 52 (Oct. 31, 2006), available at
http://www.ctc.usma.edu/research/National_Security_and_Immigration_Policy.pdf.
121
Id. at 53 n. 333 and 335; see also Robert S. Leiken, Bearers of Global Jihad Immigration and
National Security After 9/11 141 (The Nixon Center 2004), available at
http://www.nixoncenter.org/publications/monographs/Leiken_Bearers_of_Global_Jihad.pdf.
122
Id. at 58.
123
Id. at 132.
124
See Crawford v. Washington, 541 U.S. 36, 48-50 (2004) (tracing the history of confrontation rights in
the United States to the drafting of the Constitution, noting the 1794 state court holding that “[I]t is a rule
of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he
had not the liberty to cross examine.”) (quoting State v. Webb, 2 N.C. 103, 104 (Super. L. & Eq. 1794)
(per curiam)); Ohio v. Roberts, 448 U.S. 56, 63—64 (1980) (discussing the methods of examining

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Confrontation Clause was to prevent the use of ex parte affidavits,
particularly in highly political cases. 125 As Justice Scalia has noted,
the Framers created the right to cross examination specifically for
politically charged cases—“great state trials where the impartiality of
even those at the highest levels of the judiciary might not be so
clear.”126 By failing to prevent the misuse of secret evidence in
immigration proceedings, we violate one of our society’s most sacred
legal principles.
Global Harms
The misuse of secret evidence is one of many violations of
individual rights perpetrated in the name of combating terror that will
damage the United States on a global level. While the misuse of
secret evidence in immigration court is not the sole cause of these
harms, this practice contributes to a deteriorating global reputation
that injures our international relationships in several ways. By
pursing tactics that breach fundamental notions of fairness, we
alienate crucial allies in the global struggle against terrorism – not
only friends in Arab, Muslim, and South Asian nations, but states
around the world. We also lend legitimacy to terrorist groups, who
can recruit new members by pointing to the government’s unfair
treatment of non-citizens. By acting unilaterally, rather than in
accordance with international agreements, the United States sends a
message that we are not interested in playing by the rules of the
international community. As the United States’ moral authority

evidence envisioned by the Confrontation Clause and concluding that “[t]hese means of testing accuracy
are so important that the absence of proper confrontation at trial ‘calls into question the ultimate
‘integrity of the fact -finding process.’ ’ ”); Pointer v. Texas, 380 U.S. 400, 404 (1965) (stating that the
Sixth Amendment’s right of confrontation is fundamental, thereby extending its application to the states
through the Fourteenth Amendment.); see also Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L.
Rev. 1267, 1283 (1975) (discussing the components of a fair administrative hearing, Judge Friendly
states “[t]here can . . . be no fair dispute over the right to know the nature of the evidence on which the
administrator relies.”); Greene v. McElroy, 360 U.S. 474, 508 (1959) (holding that in the absence of
explicit executive or congressional authorization, the Defense Department could not deprive claimant of
his job through a proceeding in which he was denied the right to confrontation). Confrontation rights are
particularly crucial in immigration cases, where the non-citizen is likely to have a more complete
understanding of the often complex politics within the emigrant or exile community from which he
comes, and may be able to provide rebuttal evidence questioning the source of information against him
that the judge will be hard-pressed to find on her own.
125
Crawford v. Washington, 541 U.S. 36, 50 (2004) (“[T]he principal evil at which the Confrontation
Clause was directed was the . . . use of ex parte examinations as evidence against the accused.”);
Maryland v. Craig, 497 U.S. 836, 845--46 (1990).
126
Id. at 67--68 (holding that the Sixth Amendment requires that testimonial evidence may only be
introduced after cross-examination, unless the witness is unavailable and the defense has had a prior
opportunity for cross-examination). Tracing the history of the right to confrontation, Justice Scalia states
that the Framers emphasized the importance of this right to prevent a recurrence of the procedural errors
made during treason trial of Sir Walter Raleigh. Raleigh was sentenced to death based on the written
testimony of an accuser who did not appear in court for cross examination. Id. at 44.

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declines, we are losing leadership abilities on the world stage in areas
including and beyond terrorism and human rights.
The United States cannot successfully fight terrorism alone; it
requires the financial, military, and investigatory support of other
nations. 127 Combatting terrorist groups is an exceptionally complex
effort that by necessity requires the support of our allies in
agreements ranging from multilateral antiterrorism treaties to passport
verification agreements. 128 This vital assistance will not come at the
end of a stick, but will be successful only if other nations trust the
United States enough to work with us voluntarily. 129 Practices such as
the misuse of secret evidence in immigration proceedings that signal
disrespect for individual rights will only destroy this spirit of
cooperation, severely hampering our ability to dismantle terrorist
organizations. 130 Moreover, violations of fundamental rights serve
“only to confer a sense and appearance of legitimacy on those who
attack institutions.”131 In other words, by pursuing security interests
in disregard of due process rights, we are not only weakening our
own ability to fight terror, but we are also providing fodder to
terrorist groups.
By breaching international agreements that protect individual
rights, the United States is seriously tarnishing its reputation. World
opinion of the United States has dropped dramatically over the past
five years. A poll conducted earlier this year shows that since 2002,
the image of the U.S. has become less favorable in 26 of 33 countries
surveyed. 132 While this precipitous decline is not due solely to the
misuse of secret evidence in immigration court, it is largely the result
127

See, e.g., The 9/11 Commission Report: Final Report of the National Commission on Terrorist
Attacks
Upon
the
United
States
390
(2004),
available
at
http://www.911commission.gov/report/911Report.pdf (noting that the U.S. government cannot meet its own
obligations to the American people to prevent the entry of terrorists without a major effort to collaborate
with other governments).
128
See, e.g., Sixth Committee Working Group, Report of the Working Group of the Sixth Committee:
Measures to eliminate international terrorism , U.N. Doc. No. A/C.6/56/L.9 (Oct. 29, 2001) (presenting
the text of a proposed draft comprehensive convention on international terrorism); 9/11 Commission
Report , supra note 127 at 389.
129
See, e.g., Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human
Rights, Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of
Europe member states, Doc. 10957, at 53 ¶ 259 (June 12, 2006), available at
http://assembly.coe.int/Documents/WorkingDocs/doc06/edoc10957.pdf; Ruth Bader Ginsburg, “A
Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in
Constitutional Adjudication, 1 Florida Int’l. Univ. L. Rev. 27, 42 (2006).
130
See, e.g., Harold Hongju Koh, On America's Double Standard; The good and bad faces of
exceptionalism The American Prospect , Oct. 2004, at A19 (“ Even as the United States was using its
stunning military technology to bomb Baghdad, it could not diplomatically secure the Security Council
votes of even its closest allies on a matter that the president deemed of highest national importance.”).
131
Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights supra
note 129 at 53 ¶ 263.
132
Pew Global Attitudes Project, Global Unease with Major World Powers: 47-Nation Pew Global
Attitudes Survey 3-4 (June 27, 2007), available at http://pewglobal.org/reports/pdf/256.pdf (noting that
favorable ratings of the U.S. are lower than in 2002 in 26 of 33 countries for which trends are available).

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of policies that emphasize national security at the expense of
individual rights and international agreements. Indeed, since 2002,
support for America’s anti- terrorism efforts has dropped in 30 of 34
countries surveyed – including sharp drops in Canada, Europe, and
several countries that have suffered terrorist attacks in recent years. 133
As the grass-roots movement against the war in Iraq has shown,
citizens of our traditional allies can become angry when the United
States does not follow the international procedures that it has bound
itself to comply with, and can vote in a government that is less
cooperative with the United States. 134 The decline in American moral
authority hampers foreign policy efforts even more severely in Arab,
Muslim, and South Asian countries. 135 As the United States loses
standing in the international community, we lose our influence in
shaping human rights norms and in positively influencing the
behavior of other nations. 136 The loss of America’s image as a beacon
of freedom and fairness is to be mourned regardless of the
consequences for our power and influence.

133

Pew Global Attitudes Project, supra note 132 at 22.
See Alan Cowell, Turmoil in Iraq Jangles Nerves in Allied Capitals, and Bush Works to Shore Up
Support, N.Y. Times, Apr. 10, 2004, at A7 (“Spanish Socialists . . . campaigned in part on a pledge to
withdraw Spain’s 1,300 troops from Iraq in the absence of a clear United Nations mandate . . .”); Elaine
Sciolino, Spain Will Loosen Its Alliance With U.S., Premier-Elect Says, N.Y. Times, Mar. 16, 2004, at
A1 (“Mr. Zapatero offered scathing criticism of the American-led war in Iraq, which his party, like 90
percent of the Spanish people, opposed . . . Many Europeans view the war on Iraq as the latest in a series
of unilateral American actions taken in defiance of European interests or wishes, including American
decisions not to join treaties on the environment and the International Criminal Court.”).
135
See, e.g., Ivan Krastev & Mark Leonard, The Rise of ‘Herbivorous Powers’?, European Council on
Foreign Relations, Oct. 24, 2007, http://www.ecfr.eu/content/entry/commentary_gallup_poll_results/
(“The distinctive characteristic of the new world order seems to be that it will be determined not simply
by the balance of ‘hard power’ (the ability to use economic or military power to coerce or bribe countries
to support you), but by the balance of what the American academic Joseph Nye has called “soft power”the ability to get what you want through attraction rather than coercion and payment, arising from the
appeal of your culture, political ideals, and policies. Paradoxically nothing seems to erode soft power as
much as the possession of military power.”); John Shattuck, A Lawless State, The American Prospect,
Oct. 2004, at A5 (“The president’s appeal [to transform authoritarian regimes in the Middle East into
democracies] met with disdain in Arab countries, not because there is a lack of appetite for reform in the
region but because the Bush administration has undermined the moral authority of the United States by
trying to impose democracy through the unilateral and preemptive use of force in Iraq.”).
136
See, e.g., Brief of Former United States Diplomats as Amici Curiae in Support of the Petitioners at 7,
Boumediene v. Bush, Nos. 06-1195; 06-1196 (U.S. Aug. 24, 2007), 2007 WL 2414900 (“Our nation
cannot credibly champion the rule of law in the world, while being seen to disregard it in our own
affairs.”); Adam Gopnik, The Human Bomb: The Sarkozy Regime Begins, The New Yorker, Aug. 27,
2007, at 42 (“When Sarkozy met Conoleezza Rice, she said, ‘What can I do for you?’ And he said,
bluntly, ‘Improve your image in the world. It’s difficult when the country that is the most powerful, the
most successful—that is, of necessity, the leader of our side—is one of the most unpopular countries in
the world. It presents overwhelming problems for you and overwhelming problems for your allies.”);
Senate Comm. On Foreign Relations, International Covenant On Civil and Political Rights, S. Exec.
Rep. No. 102-23, at 4 (1992) (noting that ratification of the ICCPR "will enable the United States . . . to
participate with greater effectiveness in the process of shaping international norms and behavior in the
area of human rights.").
134

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National Security Interests at Stake

The use of secret evidence in immigration proceedings presents a
conflict between due process rights and national security concerns
that is not easily resolved; there are important principles, with deep
roots in domestic and international law, supporting both sides of the
debate. While the rationale for protecting the nation and its citizens
against terrorist activity may be obvious, it is worth briefly
enumerating the specific risks posed by revealing national security
information.
In combating terrorist activity on its soil, the state has an interest
in maintaining the confidentiality of certain national security
information: the identity of its agents, its sources and methods of
intelligence gathering, and security details. 137 First, if an intelligence
agent’s identity is revealed, not only will her life be at risk, but she
will no longer be able to obtain evidence from sources who may not
have known that she worked for the U.S. government. 138 This loss of
effectiveness, or, even worse, of an individual agent, could seriously
hamper the state’s efforts to combat terrorism.
The government also has a vital interest in protecting sources and
methods of intelligence gathering and analysis. Even if the identity of
a source is kept confidential, if organizations that pose a real threat to
the security of the United States learn from this source’s testimony or
from other documents how federal agents undertake investigations
and what their current avenues of information-gathering are, these
sources of information will likely dry up. 139 Revelation of sources and
methods of obtaining intelligence thus puts the United States at a
disadvantage and makes all of its residents less secure.
Moreover, if testimony or documentary evidence reveals
important security details, the provision of this information could
easily be relayed to terrorists seeking to attack sites and people in the
United States. 140 Evidence could also inform terrorist organizations as
to how much the U.S. government knows about their operations,
allowing them to alter their plans and practices to prevent the U.S.
from securing its territory. 141
137

Henry J. Hyde, Statement, House Committee on the Judiciary Hearing: H.R. 2121, "Secret Evidence
Repeal Act of 1999" (May 23, 2000), 2000 WL 684407.
138
Bo Cooper, INS General Counsel, Testimony before House Committee on the Judiciary Concerning
H.R. 2121, "Secret Evidence Repeal Act of 1999" (May 23, 2000), 2000 WL 684411, 12.
139
Protective Orders in Immigration Administrative Proceedings, 67 Fed. Reg. 36799, 36799 (May 21,
2002) (codified at 8 C.F.R. § 1003.46) (hereinafter “Protective Orders Regulation Notice”); see also
North Jersey Media Group, Inc. v. Ashcroft , 308 F.3d 198, 203 (3rd Cir. 2002) (noting that the
government's proffered interest in closing deportation hearings involving persons the Attorney General
has determined might have connections to the September 11 terrorist attacks included a risk that
terrorists will learn what the U.S. knows about them and may be able to discern the sources and methods
the government used to obtain this information, learn the easiest avenues for entering the country, and
determine which of its cells may have been compromised).
140
Protective Orders Regulation Notice, supra note 139, at 36799.
141
Id.; see also North Jersey Media Group, Inc., 308 F.3d at 203.

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In addition to state duties, the revelation of confidential nationa l
security information implicates individual rights. People who provide
information about potential terrorist activity, be they government
agents or private individuals, may face real risks of retaliation if their
identity as a source is revealed. 142 Moreover, this threat could spread
to their families and neighbors. These potential harms could violate
the rights to life, liberty, security of person, and family and home.
Linking back to the state’s fight against terrorist organizations, the
protection of these fundamental rights is crucial; an individual may
not provide valuable information unless she feels confident that she
and her family will be protected from any acts of retaliation.
HUMAN RIGHTS: A YARDSTICK AND A GUIDEBOOK

As the individual, societal, and global ramifications of the misuse
of secret evidence illustrate, these very real security concerns must be
carefully balanced with the due process rights of non-citizens in
immigration proceedings. Human rights treaties that bind the United
States can act as a yardstick, alerting us when our justice system fails
to sufficiently protect deeply rooted American values. They can also
provide a guidebook, explaining how other countries have resolved
similar problems, from which we can draw lessons germane to the
American context.
First, human rights law can perform an evaluative function – that
of a yardstick warning that the government’s focus on one societal
interest (such as national security) has threatened individual rights
fundamental to the American system of justice. As Gerald Neuman
explains,
[I]nternational law rules may provide insights concerning
the proper realization of values common to the domestic
and international systems. In particular, the international
human rights regime challenges states to reexamine the
justifiability of their local practices.143

Where American practices are out of step with human rights treaties
to which the United States has bound itself, there is cause for concern
that the Constitution is not protecting important rights as robustly as it
should. Moreover, the non- local perspectives represented in these
treaties and the soft law interpretations of them provide crucial
information in assessing the morality of America’s stance on specific
142

Protective Orders Regulation Notice, supra note 139.
Gerald L. Neuman, International Law as a Resource in Constitutional Interpretation, Harv. J.L. &
Pub. Pol’y 177, 187 (2006). (discussing here, as with much of the discussion of domestic incorporation
of international law, the use of international law to interpret the Constitution. This article applies many
of the arguments from that literature to the functions of administrative agencies, specifically statutory
interpretation, regulation drafting, and organizational culture creation.).
143

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legal questions. 144 Treaty language and the decisions of treaty bodies
can show America whether our practices measure up to legal experts’
definitions of and other nations’ protection of fundamental rights, and
can contribute thoughtful input as to why these approaches may or
may not be appropriate in the domestic context.
Human rights law can also perform an empirical function, 145
exposing how other decision- makers have resolved similar
problems. 146 This valuable information, while providing a guidebook
of different approaches, doesn’t necessarily require the United States
to follow an identical path, but allows us to learn both what has
worked in other countries and what might work best in America given
our unique legal system and society. 147 In the words of Justice
Ginsburg, international law “can add to the store of knowledge
relevant to the solution of trying questions.”148 Hopefully, this
empirical use of human rights law can promote the importation of
best practices from other nations into America’s administrative
agencies responsible for immigration processes. 149 By relying on a
carefully crafted body of decisions created through “academic
consensus and transnational debate”, 150 these executive agencies can
interpret statutes, draft regulations, and create institutional cultures
that balance important rights as fairly as possible.
IMMIGRATION LAW AND THE HUMAN RIGHT TO DUE P ROCESS

Human rights law is particularly appropriate in addressing the use
of secret evidence in immigration proceedings, due to the substance
of the law and the source of the rights at issue. Looking to human
rights treaties ratified by the United States, we find a solution that not
only mirrors the priorities found in our immigration system, but takes
144

Amartya Sen, Human Rights and the Limits of Law, 27 Cardozo L. Rev. 2913, 2926 (2006) (“[W]ellestablished practices in a rich and advanced country, which receive widespread support within the
country, might be subjected to serious criticism – and rejection – in many other countries, where public
dialogues may bring in other considerations that are ignored in the first country.”)
145
See Neuman, supra note 143, at 187; Vicki C. Jackson, Constitutional Comparisons: Convergence,
Resistance, Engagement, 119 Harv. L. Rev. 109, 116 (2005).
146
Prof. Melissa Waters labels this approach, “using treaties as bridges to soft law”. Melissa Waters,
Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties,
107 Colum. L. Rev. 628, 666--667 (2007).
147
See, e.g., Chief Justice William H. Rehnquist, Foreword, Defining the Field of Comparative
Constitutional Law viii (Vicki C. Jackson & Mark Tushnet eds., 2002) (stating that U.S. courts should
use comparative constitutional law to “aid in their own deliberative process”). This paper sees a similar
use for human rights law by administrative agencies.
148
Ruth Bader Ginsburg, “A Decent Respect to the Opinions of Humankind”: The Value of a
Comparative Perspective in Constitutional Adjudication, 1 Fl. Int’l. U. L. Rev. 27, 32 (2006). Again,
Justice Ginsburg is discussing comparative law in constitutional interpretation, while this article
analyzes the use of human rights law by administrative agencies.
149
Lesley Wexler, The Non-Legal Role of International Human Rights Law in Addressing Immigration,
2007 UNIV. OF CHICAGO LEGAL FORUM 359, 382-88 (2007).
150
Ralph Steinhardt, The Role of International Law as a Canon of Domestic Statutory Construction, 43
Vand. L. Rev. 1103, 1129 (1990).

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seriously national security concerns. While critics of human rights
treaties claim that they threaten American sovereignty, this case study
illustrates the balanced nature of a human rights approach to the use
of secret evidence in immigration proceedings.
The Aptness of Human Rights Law
A human rights framework is particularly appropriate to examine
the use of secret evidence in immigration proceedings, both because
of the substance of the law at issue and because of the source of the
rights concerned. Both the plenary power doctrine discussed above
and the offered protections against persecution and torture discussed
below are derived from international law. Moreover, the due process
rights at issue are strongly rooted in American law, so much so that it
is fair to say that the United States exported these norms of
procedural fairness to other countries by introducing them into the
human rights treaties discussed below.
Of all domestic legal fields, immigration law is perhaps the most
suited to applications of international law. First, much of immigration
law comes from international law. In particular, the plenary power
doctrine that limits the rights of non-citizens is derived from
international legal conceptions of sovereignty. 151 As David Cole
argues, these deep roots in international law may make immigration
law “particularly susceptible” to human rights restrictions on
government power. 152 Second, immigration law is federal law, and
this article discusses its application by administrative agencies that
are part of the executive branch. As a result, concerns about federal
lawmakers encroaching on state authorities and the judicial branch
imposing on the foreign affairs power of the executive are not present
here. 153
The particular rights at issue here—to procedural due process, and
specifically to confrontation—are American exports. As the
champion of procedural due process rights during the drafting of
these treaties, the United States led the rest of the world to include
these important values in their own legal systems. 154 The right to
151

See David Cole, The Idea of Humanity: Human Rights and Immigrants’ Rights, 37 Colum. Hum. Rts.
L. Rev. 627, 635-36 & n.29 (2006); See also Andrew B. Ayers, International Law as a Tool of
Constitutional Interpretation in the Early Immigration Power Cases, 19 Geo. Immigr. L.J. 125, 131-41
(2004); Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the
Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1, 83 (2002)
(explaining that international law scholars generally viewed power to exclude aliens as deriving from
principles of sovereignty and territoriality).
152
Cole, supra note 151, at 636.
153
See Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s
Multiple Ports of Entry, 115 Yale L.J. 1564, 1621--23 (2006).
154
Nowak, supra note 22 at 236 ("During the drafting of Art. 14 [of the ICCPR], a fundamental role was
played by the US, in whose constitutional history central importance has been placed on substantive and
procedural "due process of law.'")

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confrontation remains fundamental to our adversarial system of
justice, and is arguably more important here than in investigatorial
common law systems. Given the strong roots of the principle of due
process of law in our legal system, the United States should be at
least as protective of these rights as the U.N. bodies and peer nations
to which it promoted this concept. 155
That said, even defenders of the value of international law in
domestic decisions have criticized reliance on the ICCPR and
decisions of the Human Rights Committee. Professor Melissa Waters
claims that the International Covenant on Civil and Political Rights
(ICCPR) might be deemed a “low value” treaty in the United States
because of the number of reservations, understandings, and
declarations (RUDs) made in ratifying that treaty. 156 While this may
be a reason to place low value on the provisions modified by these
RUDs, it should not minimize the power of sections of the treaty
ratified without modification, particularly given the role of the United
States in drafting these provisions. Professor Vicki Jackson has
argued that decisions of the Human Rights Committee should be less
persuasive than decisions of foreign courts because the Committee “is
not a court . . . [and] does not have general governmental
responsibilities comparable to sovereign nations.”157 The Committee
is composed of legal experts from States Parties (past members from
the United States include Prof. Louis Henkin and Prof. Ruth
Wedgwood) and issues individual opinions in cases before it – so
while not a court in na me, it is arguably a judicial body. And while it
is true that the Committee is not part of a national judiciary “subject
to institutional reactions from other parts of the government,” it has
no police force to enforce its decisions, and therefore relies on the
perception of its decisions as legitimate to ensure state enforcement.
This dependence arguably imposes a level of “seriousness” on the
Committee’s decisions akin to that of a national court.
Sources of Human Rights Law

Human rights law derives from four principal sources: treaties and
conventions, customary international law, general principles of law,
and judicial decisions and the teachings of highly qualified legal
scholars. 158 This paper focuses on three treaties that the United States
155

See O’Scannlain, supra note 21, at 1907 (“[J]udges may be able to glean valuable insights from the
practice and precedent of foreign jurisdictions where American conditions are consistent with those
prevalent in the rest of the world or where Congress has expressed a desire to bring the United States
into alignment with the international community.”).
156
Waters, supra note 146, at 703.
157
Vicki C. Jackson, Constitutional Law and Transnational Comparisons: The Youngstown Decision
and American Exceptionalism, 30 Harv. J.L. & Pub. Pol'y 191, 211–12 (2006).
158
Statute of the International Court of Justice, opened for signature June 26, 1945, art. 38(1), 59 Stat.
1031, T.S. No. 993 (entered into force Oct. 24, 1945).

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has signed and ratified: the ICCPR, 159 the U.N. Convention Relating
to the Status of Refugees and its accompanying Protocol Relating to
the Status of Refugees (Refugee Convention), 160 and the U.N
Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment (CAT). 161 While some understanding of the treaty
provisions can be gleaned from the bare text, this is an exercise rather
like relying on only the words of the Constitution to determine the
scope and substance of that document. As a result, this paper looks to
opinions of the U.N. Human Rights Committee, 162 the U.N. High
159

International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, S. Exec.
Doc. E, 95-2 (1978), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]. The
ICCPR is the main source of due process rights in international human rights law. With a few explicit
exceptions, the ICCPR applies to “all individuals within [the] territory and subject to [the] jurisdiction”
of the United States, regardless of the nationality or legal status of the individual. Id. art. 2(1). The
exceptions are as follows: article 25 applies only to nationals; article 13 applies only to non-citizens;
article 12(1) applies only to individuals lawfully present; article 24 applies only to children. In contrast
to American jurisprudence that does not extend the full procedural due process protections of the
Constitution to non-citizens at the border, the rights contained in the ICCPR extend to all human beings
“within the power or effective control of [a] State party, even if not situated within the territory of the
State party . . . . [T]he enjoyment of Covenant rights is not limited to citizens of States parties but must
also be available to all individuals, regardless of nationality or statelessness, such as asylum-seekers,
refugees, migrant workers and other persons, who may find themselves in the territory or subject to the
jurisdiction of the State party.” U.N. Hum. Rts. Comm., General Comment No. 31: The Nature of the
General Legal Obligation Imposed on States Parties to the Covenant, ¶ 10, U.N. Doc.
HRI/GEN/1/Rev.7, at 195 (May 12, 2004); see also U.N. Hum. Rts. Comm., General Comment No. 15:
The Position of Aliens Under the Covenant, ¶ 2, U.N. Doc. HRI/GEN/1/Rev.7, at 140 (May 12, 2004)
(“Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights
guaranteed in the Covenant.”). Moreover, the ICCPR requires parties to provide an effective remedy for
a violation of the rights contained therein, including judicial, administrative, or legislative determination
of the treaty-based right to a remedy and official enforcement of such a remedy. ICCPR, supra, art. 2(3).
The United States has contested the extraterritorial application of the ICCPR. See U.N. Hum. Rts.
Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Third
Periodic Reports of States Parties Due in 2003, United States of America, at 109-111, U.N. Doc.
CCPR/C/USA/3 (Nov. 28, 2005) (second and third periodic reports); U.N. Hum. Rts. Comm.,
Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee, United States of America, ¶ 10, U.N. Doc.
CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006) (noting that the United States should acknowledge the
applicability of the ICCPR to individuals under its jurisdiction and outside its territory).
160
U.N. Convention Relating to the Status of Refugees, adopted July 28, 1951, 189 U.N.T.S. 150
(entered into force Apr. 22, 1954); U.N. Protocol Relating to the Status of Refugees, opened for
signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the
United States, Nov. 1, 1968) [hereinafter Refugee Convention]. While t he United States has not ratified
the Refugee Convention, it acceded to the Refugee Protocol on November 1, 1968. See
http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf. The Protocol incorporates Articles 2
through 34 of the Convention; as a result, the U.S. government has essentially signed on to the Refugee
Convention. United Nations Protocol Relating to the Status of Refugees, Art. 1, para. 1 (“The States
Parties to the present Protocol undertake to apply Articles 2 through 34 inclusive of the Convention to
refugees hereinafter defined.”).
161
U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force
June 26, 1987) [hereinafter Convention Against Torture or CAT].
162
The U.N. Human Rights Committee is a self-monitoring body set up by parties to the ICCPR to
monitor reports, which are submitted by parties on their compliance with the Covenant. ICCPR, supra
note 159, arts. 28, 40. Note that the Human Rights Committee is a different entity from the often
criticized Human Rights Commission, which was recently replaced by the Human Rights Council. The
1966 Optional Protocol to the International Covenant on Civ il and Political Rights, to which the United

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Commissioner for Refugees, 163 and the U.N. Committee Against
Torture to assist in interpreting these treaties. 164 This paper also
examines the travaux préparatoires, or drafting history of the ICCPR
and the Refugee Convention, to confirm the meaning of the treaty
language. 165 Finally, this paper relies on the writings of respected
international law scholars who have analyzed these treaties and the
opinions of the bodies charged with treaty interpretation.
An examination of treaties and their soft law interpretations
on the use of secret evidence in immigration proceedings gives rise to
three principles. Heightened procedural due process protections
should apply to decisions to remove (a) non-citizens lawfully present,
(b) non-citizens unlawfully present who have special claims to
protection from torture or persecution, and (c) non-citizens
unlawfully present with strong family ties. In the cases of noncitizens with lawful status, claims to asylum, or strong family ties,
where the government shows that “compelling reasons of national
security” require, the rights to submit reasons against expulsion and
to review may be limited in a manner that specifically responds to the
national security interest at stake. Other aspects of those rights and
other due process protections still apply. In the case of non-citizens in
States is not a party, "recognizes the competence of the [Human Rights] Committee to receive and
consider communications from individuals subject to its jurisdiction who claim to be victims of a
violation by that State Party of any of the rights set forth in the Covenant." Optional Protocol to the
International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, art. 1, 999
U.N.T.S. 302, 302 (entered into force Mar. 23, 1976) [hereinafter ICCPR Optional Protocol]. While the
United States therefore could not be charged by an individual with violations of the Covenant, the
decisions of the Human Rights Committee provide guidance in interpreting and complying with the
treaty.
163
The Refugee Convention provides that parties will cooperate with the United Nations High
Commissioner for Refugees (UNHCR), a body created by the United Nations General Assembly on
December
14,
1950.
Refugee
Convention,
art.
35(1),
available
at
http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf. The Executive Committee of the
UNHCR, composed of 72 member nations, meets annually to advise on international protection issues.
UNHCR, Executive Committee of the High Commissioner's Programme (ExCom),
http://www.unhcr.org/excom.html (last visited Nov. 19, 2007). These bodies issue notes, guidelines, and
conclusions that provide guidance in interpreting and upholding the Refugee Convention.
164
The U.N. Committee Against Torture is a self-monitoring body set up by parties to the CAT to
monitor reports by parties on their compliance with the Convention and investigate claims of systematic
torture in the territory of a party. CAT, Arts. 17, 19, 20; United Nations Committee Against Torture,
General Comment No. 1: Implementation of article 3 of the Convention in the context of article 22
(Refoulement and communications) ¶ 9, U.N. Doc. No. HRI/GEN/1/Rev.7 (1996). Article 22(1) of the
CAT allows a party to declare that they "[R]ecognize the competence of the Committee [Against
Torture] to receive and consider communications from or on behalf of individuals subject to its
jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention.”
The United States has not made such a declaration and therefore could not be charged by an individual
with violations of the Covenant. However, the decisions of the Committee Against Torture provide
guidance in interpreting and complying with the treaty.
165
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 32, 1155
U.N.T.S. 331, 340 (entered into force Jan. 27, 1980) (authorizing recourse to supplementary means of
interpretation, including preparatory work of the treaty, in order to confirm the meaning of the treaty
language). Travaux preparatoires are the "legislative history" of treaties, consisting of verbatim
transcripts of the statements made by representatives of various nations during the drafting process.

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danger of torture, procedural due process protections cannot be
limited.
What Human Rights Law Says
Non-Citizens Lawfully Present

The ICCPR is the seminal treaty providing procedural due process
rights in human rights law. Specifically, the ICCPR provides noncitizens lawfully in the territory of a state party a right to a removal
decision “ reached in accordance with law,” 166 Non-citizens lawfully
166

ICCPR, supra note, 159, art. 13 (“An alien lawfully in the territory of a State Party to the present
Covenant may be expelled therefore only in pursuance of a decision reached in accordance with law and
shall, except where compelling reasons of national security otherwise require, be allowed to submit the
reasons against his expulsion and to have his case reviewed by, and be represented for the purpose
before, the competent authority or a person or persons especially designated by the competent
authority.”). A non-citizen is considered lawfully present when “she has entered the State of residence in
accordance with its legal system . . . and/or is in possession of a valid residency permit (ex lege or by
sovereign act in the form of a visa).” Nowak, supra note 22, at 224. See also U.N. Human Rights
Comm., General Comment No. 15: The position of aliens under the Covenant, ¶ 9, U.N. Doc. CCPR
General Comment No. 15 (April 11, 1986) (explaining that where the lawfulness of a non-citizen’s
status is in dispute, the due process protections of Article 13 must apply to the decision to deport),
reprinted in U.N. Econ. & Soc. Council [ECOSOC], Compilation of general comments and general
recommendations adopted by Human Rights Treaty Bodies 141, U.N. Doc. HRI/GEN/1/Rev.7 (May 12,
2004). The U.N. Human Rights Committee recently decided that Article 13’s “in accordance with law”
language incorporates Article 14’s due process provisions, which include confrontation rights. U.N.
Human Rights Comm., Ahani v. Canada, Communication No. 1051/2002, ¶ 10.9, U.N. Doc.
CCPR/C/80/D/1051/2002 (June 15, 2004). Professor Ruth Wedgwood, of the United States, .was a
Committee member at the time of the decision. See Meeting of State Parties, Election, in accordance
with articles 28 to 32 of the International Covenant on Civil and Political Rights, of nine Members of the
Human Rights Committee to replace those whose terms are due to expire on 31 December 2002, 31,
U.N. Doc. CCPR/SP/58 (July 5, 2002). The Committee has also found that the concept of a fair hearing
in Article 14(1), providing the right to a fair trial in the civil context, “should be interpreted as requiring
a number of conditions, such as equality of arms, [and] respect for the principle of adversary
proceedings….” U.N. Human Rights Comm. Morael v. France, Communication No. 207/1986, ¶ 9.3,
U.N. Doc. CCPR/C/36/D/207/1986 (July 28, 1989); E/CN.4/AC.1/SR.25 at 8, E/CN.4/AC.1/SR.32 at
10-11. The Committee has found that “equality of arms” includes the requirement that the inspection of
records be dealt with in a manner equal for both parties. Nowak, supra note 22, at 246-47, 261; U.N.
Human Rights Comm., Compass v. Jamaica, Communication No. 375/1989, ¶ 10.3, U.N. Doc.
CCPR/C/49/D/375/1989 (March 11, 1993) (noting that Article 14(3)(e) "protects the equality of arms
between the prosecution and the defense in the examination of witnesses."). The Committee, including
Professor Louis Henkin of the United States, has found, in a civil suit where one party was allowed to
submit a brief to which the opposing party was not allowed to respond, that Article 14(1) protects “the
ability to contest all the argument and evidence adduced by the other party” U.N. Human Rights Comm.,
Äärelä v. Finland, Communication No. 779/1997, ¶ 7.4, U.N. Doc. CCPR/C/73/D/779/1997 (Nov. 7,
2001). In addition, the Committee, also including Professor Henkin, has extended the right of “equality
of arms” to administrative proceedings: in a proceeding to declare an individual disabled, where the
claimant was not allowed to submit a psychological report refuting the conclusions of the psychological
report of the opposing party, the Committee found a violation of Article 14(1) “[i]n the absence of the
guarantee of equality of arms between the parties in the production of evidence for the purposes of the
hearing.” U.N. Human Rights Comm., Jansen-Gielen v. The Netherlands, Communication No.
846/1999, ¶ 8.2, U.N. Doc. CCPR/C/71/D/846/1999 (Apr. 3, 2001). The ICCPR travaux preparatoires
reveal that although some states opposed including specific safeguards for expulsion, the majority
believed that protection of the individual should be balanced against the state’s interest. Article 13, as
adopted, was accordingly based on the Refugee Convention’s provision of adequate and specific

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present must be allowed to submit reasons against removal and to
have their cases reviewed by the competent authority. 167 Notably, this
treaty provision incorporates considerations of national security: the
right to submit a response and to review do not attach “where
compelling reasons of national security otherwise require.”168
This basic treaty framework, as fleshed out by Human Rights
Committee decisions, gives rise to two principles that thoughtfully
balance due process rights and national security concerns in decisions
to expel non-citizens lawfully present: (a) most non-citizens lawfully
present must be allowed to see all of the evidence used against them
in removal proceedings and (b) in order to withhold evidence against
non-citizens lawfully present, the state must establish that
“compelling reasons of national security” apply. In other words, the
government must present a convincing case that it is necessary to
withhold documentary evidence in order to protect lives, important
sources, and/or intelligence gathering methods. Administrative
agencies responsible for enforcing the immigration laws should
incorporate these principles.
Non-Citizens Seeking Protection from Persecution

The Refugee Convention provides a balanced approach to the due
process rights of asylum seekers facing terrorism charges in
immigration proceedings. 169 In a nutshell, the Refugee Convention
prohibits member states from returning a refugee—a non-citizen who
has a well- founded fear of persecution based on her race, religion,
nationality, political opinion, or membership in a particular social
group—to the country in which she fears persecution. 170 This
obligation, known as the principle of non-refoulement, is a
universally accepted and binding international law norm. 171 Where
safegauards for expulsion actions. Mark J. Bossuyt, Guide to the “Travaux Preparatoires” of the
International Covenant on Civil and Political Rights 269 (1987) (citing E/CN.4/SR.316 at 6, 8)
167
ICCPR, supra note 159, art. 13.
168
Id.
169
Although the United States has yet to sign and ratify the Refugee Convention, it acceded to the
Refugee Protocol on November 1, 1968. UNHCR, UNHCR Global Report 2003, 487 (2003), available
at http://www.unhcr.org/publ/PUBL/40c6d7680.pdf. Accession refers to the formal acceptance of treaty
provisions by a state that failed to sign the treaty when it was open to signat ure; it may occur before or
after entry into force, Ian Brownlie, Principles of Public International Law 604-05 (3d. ed. 1979). The
Protocol incorporates Articles 2 through 34 of the Convention, so in essence, the U.S. government has
joined the Refugee Convention as well. Refugee Protocol, supra note 148, art 1., ¶ 1 ("The States Parties
to the present Protocol undertake to apply articles 2 through 34 inclusive of the Convention to refugees
as hereinafter defined.")
170
Refugee Convention, supra note 160, art. 33(1). The Convention also provides numerous substantive
rights to refugees.
171
Id. For further discussion of the basis for the principle of non-refoulement in treaty law and
customary international law, see Guy S. Goodwin-Gill, The Refugee in International Law 124-37
(1996). High standards of procedural fairness should apply to asylum determinations because of the
universal and fundamental nature of the non-refoulement principle and the serious consequences of
returning an asylum seeker to a country in which she fears persecution. Sir Elihu Lauterpacht & Daniel
Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion, in Refugee Protection

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the asylum seeker’s presence implicates national security concerns,
the Convention provides two exceptions to this protection principle:
one for non-citizens whom are suspected of having committed
various enumerated crimes (the exclusion clauses) 172 and another for
those who are suspected of being a current or future threat to national
security (the expulsion clauses). 173
In the early 1950’s, the drafters of the Convention were concerned
about dangers posed by spies or subversive agents of foreign
governments who would “engage in activities on behalf of a foreign
Power against the country of their asylum. . .”174 These agents posed
threats parallel to those posed by terrorists, including violence against
American citizens both within U.S. territory and abroad and theft of
information about the United States’ efforts to protect its citizens and
retaliate against enemy agents and states. It was against this backdrop
that the drafters of the Convention balanced the rights of refugees
with the national security interests of States Parties.
The Refugee Convention’s exclusion and expulsion clauses
protect these national security interests. 175 Article 1(F) enumerates
in International Law: UNHCR’s Global Consultations on International Protection 87, 133-34 (Erika
Feller et al. eds., 2003) (describing limitations on the interpretation and application ofArticle 33 national
security and public safety exceptions and emphasizing the “humanitarian character of non-refoulement”).
available at http://www.unhcr.org/publ/PUBL/419c75ce4.pdf; UNHCR Executive Comm., The Problem
of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum, ¶(e), U.N. Doc.
12A(A/38/12/Add.1) (Oct. 20, 1983) (recognizing "the grave consequences of an erroneous
determination for the applicant and the resulting need for such a decision to be accompanied by
appropriate procedural guarantees").
172
Refugee Convention, supra note 160, art. 1(F)(“The provisions of this Convention shall not apply
apply to any person with respect to whom there are serious reasons for considering that (a) He has
committed a crime against peace, a war crime, or a crime against humanity, as defined in the
international instruments drawn up to make provision in respect of such crimes;(b) He has committed a
serious non-political crime outside the country of refuge prior to his admission to that country as a
refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.”).
173
Id., art. 32(1) (“The Contracting States shall not expel a refugee lawfully in their territory save on
grounds of national security or public order.”). Prior to assessing the actual t hreat posed by the asylumseeker, authorities should conduct a full and fair individual review of the asylum-seeker’s claim.
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, ¶ 176, U.N. Doc.
HCR/IP/4/Eng/Rev.1 (Jan. 1992) (hereinafter “UNHCR Handbook”); U.N. Special Rapporteur of the
Commission on Human Rights, Report of the Special Rapporteur of the Commission on Human Rights
on the question of torture and other cruel, inhuman or degrading treatment or punishment, ¶ 30, U.N.
Doc. A/57/173 (July 2, 2002).
174
The Refugee Convention, 1951: The Travaux Preparatoires Analysed With a Commentary By Dr.
Paul Weis, at 330 (Weis ed. 1995).
175
The UNHCR states that a decision-maker first provide a full hearing on the merits of the asylum
claim and a decision on whether the applicant merits asylum before examining the government’s
allegations of past criminal acts or an ongoing national security risk. United Nations High Commissioner
for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, at ¶ 176, U.N. Doc. No.
HCR/IP/4/Eng/Rev.1 (Jan. 1992) (hereinafter “UNHCR Handbook”); Theo van Boven, United Nations
Special Rapporteur of the Commission on Human Rights, Report on the question of torture and other
cruel, inhuman or degrading treatment or punishment, at ¶ 30, U.N. Doc. No. A/57/173 (July 2, 2002)
(hereinafter “Special Rapporteur’s Torture Report”). Because non-refoulement is a binding obligation on
parties to the Refugee Protocol, and because a mistake in determining asylum status or exclusion would

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several grounds for exclusion from refugee status, including the
commission of serious non-political crimes outside the country of
refuge. 176 This provision would likely apply to an asylum seeker who
had engaged in terrorist activity in the past. 177 UNHCR states that the
government may not keep secret the substance of evidence used to
exclude a non-citizen from refugee status, but should protect its
security interests through procedural safeguards such as protective
orders. 178
The expulsion clauses, Articles 32 and 33(2), provide that a
refugee who poses a current or future risk to national security may be
expelled where there are “reasonable grounds” for regarding him as
such a threat. 179 This expulsion decision must be made “in accordance
with due process of law.”180 In most cases, the specific rights to
pose a serious risk to human life and liberty, the UNHCR states that it is not appropriate to apply
summary expulsion procedures to asylum seekers suspected of terrorist activity. United Nations High
Commissioner for Refugees, Background Note on the Application of the Exclusion Clauses: Article 1F
of the 1951 Convention Relating to the Status of Refugees, at ¶ 99 (Sept. 4, 2003), reprinted at 15 Int'l J.
Refugee L. No. 3 502, 543 (2003) (hereinafter “UNHCR Background Note”) (noting that applicability
of exclusion clauses should not be examined in accelerated procedures).
176
The exclusion clauses mandate that the Convention’s protections cannot apply to individuals who
committed an international crime such as a war crime or a crime against humanity, a serious nonpolitical crime outside the country of refuge, or acts contrary to the purposes and principles of the United
Nations. Refugee Convention Art. 1(F). The exclusion clauses do not apply to current or future threats to
national security.
177
“Exclusion should not be based on evidence that the individual concerned does not have the
opportunity to challenge, as this offends principles of fairness or natural justice.” UNHCR Background
Note, supra note 175 at ¶ 112, 15 In’l J. Refugee L. No. 3 502, 543 (2003).
178
UNHCR provides an example: the court could create an order that dictates that only the “general
content” of the information can be provided to the asylum seeker. UNHCR Background Note, supra note
175at ¶ 113; United Nations High Commissioner for Refugees, Guidelines on International Protection:
Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of
Refugees, at ¶ 36, U.N. Doc. No. HCR/GIP/03/05 (Sept. 4, 2003).
179
Refugee Convention Art. 32(1) & (2); 33(2). Article 32 allows expulsion of a refugee lawfully present
on grounds of national security, and Article 33 allows a State Party to deny protection against
refoulement (return to the country in which she fears persecution) to a refugee whom it has "reasonable
grounds" to regard as a danger to the national security of that state. Refugee Convention Art. 33(2) ("The
benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable
grounds for regarding as a danger to the security of the country in which he is, or who, having been
convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of
that country.") See also The Refugee Convention, 1951: The Travaux Preparatoires Analysed With a
Commentary By Dr. Paul Weis, supra note 174 at 328, 330 (explanation of Article 33(2) by Swedish
representative to the 1951 United Nations Conference on the Status of Refugees and Stateless Persons,
who introduced this language into the Convention). See UNHCR Background Note, supra note 175 at ¶
10 15 In’l J. Refugee L. No. 3 502, 505 (2003) (noting that Article 33(2) is "a measure of last resort,
taking precedence over and above criminal law sanctions and justified by the exceptional threat posed by
the individual—a threat such that it can only be countered by removing the person from the country of
asylum.").
180
Refugee Convention Art. 32(2) ("The expulsion of [a refugee lawfully in the territory on grounds of
national security] shall be only in pursuance of a decision reached in accordance with due process of
law. Except where compelling reasons of national security otherwise require, the refugee shall be
allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before
competent authority or a person or persons specially designated by the competent authority.") There is
no case law interpreting the meaning of “due process of law”. Dr. Paul Weis notes that the term, which
comes from the U.S. Constitution, includes a “decision reached in accordance with a procedure
established by law, and containing the safeguards which the law provides for the class of cases in

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submit evidence to rebut the charges against one, and to appeal to and
have representation before a competent authority, apply. 181 However,
where the state establishes that “compelling reasons of national
security” require a specific abrogation of these rights, these two
specific due process protections may be limited. 182
While a refugee facing expulsion is looking for another country to
accept him, for which he is allowed a “reasonable period” of time, the
state may apply “such internal measures as [it deems] necessary” to
protect its national security interests. 183 It is important to note that this
individual is still a refugee—the expulsion clauses maintain refugee
status while permitting deportation—so she should not be returned to
the country in which she fears persecution. 184
In asylum cases, the Refugee Convention and the UNHCR’s
interpretation of it provide a balanced approach to protecting asylum
seekers’ procedural due process rights and national security. The
Convention supports security interests with measures to remove
asylum seekers who have committed acts of terrorism or pose a
present or future threat to national security, while ensuring the
protection of these asylum seekers’ rights to a fair determination of
their refugee case through procedural safeguards. 185 The UNHCR
interprets the Convention to protect the rights of refugees by placing
the burden on the state to establish the need to use secret evidence,
and ensuring that the asylum seeker is always privy to the general
substance of the allegations included in such evidence. The
UNHCR’s interpretation also promotes the state’s interests by
allowing, in the exceptional cases in which it can make a showing of
question, in particular equality before the law and t he right to a fair hearing.” The Refugee Convention,
1951: The Travaux Preparatoires Analysed With a Commentary By Dr. Paul Weis , supra note 174 at
322. Prof. Guy Goodwin-Gill suggests that minimum due process requirements in the expulsion context
arguably include the right to be informed of the case against one, the right to submit evidence to rebut
that case, and the right to a reasoned decision. Goodwin-Gill, supra note 171 at 306-07
181
Refugee Convention Art. 32(2).
182
Refugee Convention Art. 32(2). There is no case law interpreting the meaning of “compelling reasons
of national security.” It is apparent from the plain text of Article 32(2) only that the standard for
“compelling reasons of national security” does not encompass all refugees who pose a risk to national
security. Moreover, Dr. Weis finds that the “compelling reasons of national security” exception may be
invoked “when it is not in the public interest that the reasons for the decisions should be divulged, for
example, in espionage cases.” The Refugee Convention, 1951: The Travaux Preparatoires Analysed
With a Commentary By Dr. Paul Weis , supra note 174 at 322.
183
Refugee Convention Art. 32(3).
184
This stat us entitles her to the protection of the United Nations High Commissioner for Refugees, as
well as the opportunity to look for a country other than her country of origin (because she fears
persecution in her home country) to accept her. In contrast, non-citizens who are excluded from refugee
status under Article 1(F) can be returned to their country of origin. Moreover, the text of the Convention
provides that protection against refoulement may be denied only to refugees about whom there are
reasonable gr ounds for believing that they pose a danger to the security of the country in which they
reside; refugees who pose a danger to national security more generally may be expelled, but may not be
returned to the country in which they fear persecution. Refugee Convention Art. 32(1) & (2); 33(2); The
Refugee Convention, 1951: The Travaux Preparatoires Analysed With a Commentary By Dr. Paul Weis,
supra note 174 at 342; Lauterpacht and Bethlehem, supra note 171 at 129.
185
Refugee Convention, Arts. 32(2),(3), 33(2).

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necessity, for the withholding of the identity of a witness, and by
recommending the use of safeguards, such as protective orders, to
protect this informa tion. 186
Non-Citizens Seeking Protection Against Torture

International law contains a universal prohibition on torture that
cannot be derogated. This obligation derives from international
treaties such as the Convention Against Torture and the ICCPR, 187 as
well as regional treaties such as the African Charter on Human and
Peoples’ Rights, the American Convention on Human Rights, and the
European Convention on Human Rights. 188 While these treaties
permit derogations from some of their provisions, they mandate
explicitly that governments cannot derogate from the clauses
proscribing torture. 189 In addition to this powerful treaty-based
obligation, the absolute ban on torture has become a jus cogens norm
of customary international law that imposes obligations erga
omnes.190
CAT’s categorical, treaty-based prohibition on torture includes a
specific and non-derogable duty not to return an individual, whether
he is a citizen or a non-citizen, to a country “where there are
substantial grounds for believing that he would be in danger of being
subjected to torture.”191 In addition, the more general prohibition on
torture found in international and regional human rights instruments
has been interpreted to include a ban on deportation to a state in
186

Refugee Convention, Art. 32(2); Lauterpacht and Bethlehem, supra note 171 at 134; UNHCR
Background Note, supra note 176 at ¶¶ 112-13, 15 In’l J. Refugee L. No. 3 502, 543 (2003). .
187
CAT, supra note 161, arts. 2-4; ICCPR, supra note 159, art. 7.
188
African Charter on Human and Peoples' Rights, adopted June 27, 1981, art. 5, 1520 U.N.T.S. 217,
247 (entered into force Oct. 21, 1986); Organization of American States, American Convention on
Human Rights, opened for signature Nov. 22, 1969, art. 5(2), O.A.S.T.S. No. 36, 1144 U.N.T.S. 143,
146 (entered into force July 18, 1978) [herein after American Convention]; Council of Europe,
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov.
4, 1950, art. 3, Europ. T.S. No. 5, 213 U.N.T.S. 221, 224 (entered into force Sept. 3, 1953) [hereinafter
European Convention]; see also Soering v. United Kingdom, A161 Eur. Ct. H.R. 1, ¶ 88, at 34 (1989)
(“Article 3 . . . makes no provision for exceptions and no derogation from it is permissible . . . in time of
war or other national emergency. This absolute prohibition of torture and of inhuman or degrading
treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the
fundamental values of the democratic societies making up the Council of Europe. It is . . . generally
recognised as an internationally accepted standard.”)
189
ICCPR, supra note 159, art. 4(2) (“No derogation from articles . . . 7 . . . may be made . . . .”); CAT,
supra note 161, art. 2(2) (“No exceptional circumstances whatsoever, whether a state of war or a threat
of war, internal political in stability [sic] or any other public emergency, may be invoked as a
justification of torture.”); American Convention, supra note 188, art. 27(2) (prohibiting suspension of
Article 5); European Convention, supra note 188, art. 15(2) (“No derogation . . . from Article 3 . . . shall
be made . . . .”). See also U.N. Hum. Rts. Comm., General Comment No. 29: Article 4: Derogations
During a State of Emergency, ¶ 7, U.N. Doc. HRI/GEN/1/Rev.7, at 184 (May 12, 2004) [hereinafter
General Comment 29] (describing the prohibition on torture in the ICCPR as non-derogable).
190
See Prosecutor v. Furun dzija, Judgement, IT-95-17/1-T, ¶¶ 143-54, (ICTY Trial Chamber 1998);
General Comment No. 29, supra note 189, at ¶ 11 (noting “the peremptory nature” of article 7 of the
ICCPR).
191
CAT, supra note 161, art. 3(1).

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which there are substantial grounds for believing that a non-citizen
would be at risk of torture. 192 The scope of the prohibition on torture
covers all persons at risk of torture, and thus protects all non-citizens,
whether or not they hold lawful status in the United States. 193
The peremptory norm prohibiting torture requires enhanced
procedural due process protections in removal proceedings for noncitizens accused of terrorist activity. Simply put, claims for protection
from torture should be examined independently of any secret
evidence to ensure compliance with CAT. The Committee Against
Torture has repeatedly decided that alleged and even admitted
members of terrorist organizations cannot be returned to the country
in which they fear torture. 194 As a result, there is no need to use secret
evidence to show that a CAT claimant is a threat to national security
because even if he is found to pose such a threat, he cannot be sent to
torture. 195
As the Human Rights Committee has noted, “[W]here one of the
highest values protected by the Covenant, namely the right to be free
from torture, is at stake, the closest scrutiny should be applied to the
fairness of the procedure applied to determine whether an individual
is at a substantial risk of torture.”196 The peremptory nature of the
192

See, e.g,. U.N. Hum. Rts. Comm., General Comment No. 31: The Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, ¶ 12, U.N. Doc. HRI/GEN/1/Rev.7, at 192 (May
12, 2004) (noting that ICCPR article 2, requiring states to ensure Covenant rights for all persons in their
territory and under their control, “entails an obligation not to extradite, deport, expel or otherwise
remove a person from their territory, where there are substantial grounds for believing that there is a real
risk of irreparable harm, such as that contemplated by [article 7 of the ICCPR] . . . .”); U.N. Hum. Rts.
Comm., General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or
Degrading Treatment or Punishment), ¶ 9, U.N. Doc. HRI/GEN/1/Rev.7, at 150 (May 12, 2004) (“In
view of the Committee, States parties must not expose individuals to the danger of torture or cruel,
inhuman or degrading treatment or punishment upon return to another country by way of their
extradition, expulsion or refoulement.”).
193
CAT, supra note 161, art. 3(1).
194
The Committee has found violations of article 3 (prohibiting deportation to torture) against Sweden
for return of a suspected member of a terrorist organization to Egypt, U.N. Comm. Against Torture,
Agiza v. Sweden, ¶ 13.4, U.N. Doc. CAT/C/34/D/233/2003 (May 20, 2005) [hereinafter Agiza] (finding
a breach of article 3 because claimant was at real risk of torture in Egypt), against France for return of an
individual convicted for links to ETA in Spain, U.N. Comm. Against Torture, Arana v. France, ¶¶ 11.411.5, 12, U.N. Doc. CAT/C/23/D/63/1997 (June 5, 2000) [hereinafter Arana] (finding a violation of
Article 3 because of risk of torture and failure to respect due process rights during deportation), and
against Sweden for return of a member of Sendero Luminoso to Peru, U.N. Comm. Against Torture,
Tapia Paez v. Sweden, ¶¶ 14.3, 14.5, U.N. Doc. CAT/C/18/D/39/1996 (Apr. 28, 1997) [hereinafter Tapia
Paez] (“The nature of the activities in which the person concerned engaged cannot be a material
consideration when making a determination under article 3 of the Convention.”). In each of these cases,
the central question was how the country of origin’s government treated suspected members of the
terrorist organizations to which these individuals allegedly belonged. See Tapia Paez, supra at ¶¶ 14.314.4; Arana, supra at ¶¶ 11.4-11.5; Agiza, supra at ¶¶ 13.4-13.5. But see Cruz Varas v. Sweden, A201
Eur. Ct. H.R. 1, ¶¶ 78-82, at 30-31 (1991) (allowing expulsion of asylum seeker under article prohibiting
torture where credibility was at issue, corroboration was found insufficient, and human rights conditions
in country of origin had improved).
195
The government might want to use secret evidence to show that a CAT claimant is not credible. Even
here, due process protections should apply. See CAT, supra note 161.
196
Ahani, supra note 166 at ¶ 10.6.

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prohibition on torture requires that the highest levels of due process
protection attach to torture claims. 197 In order to comply with CAT,
the government should not rely on secret evidence to challenge a
claim to protection against torture.
Non-Citizens with Strong Family Ties

The ICCPR, as interpreted by the Human Rights Committee,
provides heightened due process rights in removal proceedings to
non-citizens with strong family ties to the United States. Two
provisions of the treaty---the right to family life and the right to
effective remedies---combine to require particular procedural fairness
in these cases. This special protection of family life is consonant with
policies underlying U.S. immigration law that preference family ties
between spouses, parents and children, and siblings in awarding
immigrant visas. 198
Article 17(1) of the ICCPR prohibits “arbitrary or unlawful
interference” with the family. 199 According to the Human Rights
Committee, “[T]he exclusion of a person from a country where close
members of his family are living can amount to an interference within
the meaning of Article 17.”200 This article requires due process
protections even for unlawfully present family members in removal
proceedings. 201 And under Article 2(3), member states must provide
197

See Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831, ¶¶ 79-82, at 1855-56 (finding that a
claim to protection against torture in removal proceedings must be examined independently without
regard to any national security risk). C.f. Suresh v. Canada, [2002] S.C.R. 3, at ¶¶ 118-23 (holding under
Canada's commitment to CAT and its requirement of substantial procedural protection for individuals at
risk of torture, Canadian common law duty of procedural fairness directs that non-citizen facing
deportation to torture must be provided with material on which decision to deport is based and
opportunity to respond, “subject to privilege or similar valid reasons for reduced disclosure, such as
safeguarding confidential public security documents”).
198
See INA § 240A(b), 8 U.S.C. § 1229b(b) (2000) (allowing non-citizens unlawfully present to become
permanent residents if (a) they have been in the United States for ten years and if their deportation would
result in exceptional hardship to a U.S. citizen or permanent resident spouse, parent, or child or (b) they
have been in the U.S. for three years and they or their U.S. citizen child has been battered or subjected to
extreme cruelty by a U.S. citizen or permanent resident spouse or parent, and removal would result in
extreme hardship to the non-citizen, her child, or her parent); INA § 245(i), 8 U.S.C. § 1255(i) (2000)
(allowing adjustment to status of permanent resident for non-citizens unlawfully present who are
beneficiaries of family-based visas on the basis of their status as a child or sibling of a U.S. citizen or a
spouse or unmarried child of a permanent resident, if that visa petition was filed on or before April 30,
2001); INA § 208(b)(3), 8 U.S.C. § 1158(b)(3) (2000) (providing asylee status to spouse and children of
non-citizen granted asylum).
199
ICCPR, supra note 159, art. 17(1).
200
Aumeeruddy-Cziffra v. Mauritius, United Nations Human Rights Committee, Communication No.
35/1978, ¶9.2(b) 2 (i) 2 , U.N. Doc. No. CCPR/C/12/D/35/1978 (Apr. 9, 1981). Even where sanctioned
by law, interference may violate this provision if the law is arbitrary or imposed arbitrarily. United
Nations Human Rights Committee, General Comment No. 16: Article 17 (Right to privacy), ¶ 4 (1988),
U.N. Doc. HRI/GEN/1/Rev.7 at 142 (May 12, 2004).
201
Winata and Li v. Australia, United Nations Human Rights Committee, Communication No. 930/2000,
¶¶7.3, 9, U.N. Doc. No. CCPR/C/72/D/930/2000 (Aug. 16, 2001) (finding “arbitrary interference” with
the right to family life where unlawfully present parents with a citizen child were ordered removed
without adequate due process protections.) Mr. Louis Henkin, on behalf of the United States of America,
joined in this opinion. The Committee found that the decision to deport these parents, requiring them to

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an effective remedy for violations of the right to family life. 202 Article
23 buttresses these protections, stating that “The family is the natural
and fundamental group unit of society and is entitled to protection by
society and the State.”203 This wording imposes affirmative
obligations on States Parties to adopt legislative, administrative, or
other measures to protect family life. 204
Human rights treaties that bind the United States guide us to a
thoughtful balance between the rights of non-citizens to due process
of law, and the security rights and interests of the state and its agents.
Procedural due process protections should apply fully to non-citizens
lawfully present in or with strong family ties to a country as well as to
non-citizens with a special claim to protection against persecution or
torture. In these situations, the government’s security interests are
also protected, by allowing expulsion of refugees and non-citizens
lawfully present who pose a threat to national security, and
limitations on their right to present reasons against expulsion where
the government establishes a “compelling reason of national security”
requires. Non-citizens at risk of torture are always entitled to full
confrontation rights; secret evidence cannot be used in these cases.
The Terrorism Suspect Who Cannot Be Removed

While due process rights necessarily override national security
interests in certain cases, the state is not left without recourse. State
security concerns may be ensured through a variety of means in these
cases, including criminal prosecution, restrictions on freedom of
movement, and removal to a third country.
The state can institute criminal proceedings under domestic law
against individuals suspected of terrorist activity. If a court
determines that a non-citizen at risk of torture is engaged in criminal
terrorist activity, this individual can be placed in jail, where he will
not be able to perpetrate future crimes. Human rights treaties that
bind the United States also permit a state to impose narrowly tailored
and temporally limited restrictions on the freedom of movement of an
individual who cannot be removed because she may face persecution
choose whether to leave or bring their child, would result in “substantial changes to long-settled family
life.” Where such strong family ties existed, the government could not rely solely on domestic law to
defend its actions but was required to provide additional factors justifying removal. Id. ¶¶ 7.2, 9.
Conversely, where full procedural safeguards are applied, the right to family life is not violated in
removal proceedings. Canepa v. Canada, United Nations Human Rights Committee, Communication
No. 558/1993, ¶¶ 2.3, 4.2, 11.4, U.N. Doc. No. CCPR/C/59/D/558/1993 (June 20, 1997) (finding
separation from family was not arbitrary in part because the applicant had benefited from a “[F]ull
[removal] hearing with procedural safeguards. . . .”).
202
ICCPR, supra note 159, art. 2(3) (“[A]ny person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity”).
203
ICCPR, supra note 159, art. 23(1).
204
United Nations Human Rights Committee, General Comment No. 19: Article 23 (The family), ¶¶ 3, 5
(1990), U.N. Doc. HRI/GEN/1/Rev.7 at 149–50 (May 12, 2004); Nowak, supra note 22, at 402.

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in her home country but is suspected to pose a risk to national
security. 205
If a state is incapable of protecting itself through either of these
approaches, it is possible in extreme circumstances to allow for
detention based on suspicion of terrorist activity without a criminal
trial. The ICCPR would likely prohibit such detention as arbitrary. 206
However, parties can derogate from this provision of the ICCPR in
“[T]ime of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed . . . .”207 The state
must, however, show that this derogation is “[S]trictly required by the
exigencies of the situation, . . . .” is consistent with international
human rights law, and does not involve discrimination based on race,
color, language, religion, or social origin. 208 The state must craft a
law that is narrowly tailored and temporally limited, and immediately
inform other parties, through the U.N. Secretary General, of this
derogation and the reasons behind it. 209
Finally, a state may remove an asylee or recipient of CAT
protection to a third country in which she does not fear persecution or
torture. As a non-citizen lawfully present, this individual would be
entitled to Article 13 due process protections in her removal hearing.
Sending suspected members of terrorist organizations to another
country where the state cannot monitor their activity may not be the
most effective method of preventing terrorism, and it is rare that a
third country will accept a non-citizen suspected of terrorist activity.
Most importantly, the state has an obligation to ensure that the
individual will not be tortured or persecuted in the third country to
which it sends her or returned to the country in which she fears
torture or persecution. 210
205

Celepli v. Sweden, United Nations Human Rights Committee, Communication No. 456/1991, ¶¶ 2.12.3, 9.2, U.N. Doc. No. CCPR/C/51/D/456/1991 (Aug. 2, 1994) (approving Sweden’s imposition of
restrictions on the freedom of movement of a Kurd who was at risk of political persecution if returned to
Turkey, but whom the government suspected of being involved in terrorist activity). Mr. Celepli was
confined to his home municipality and had to report to the police three times each week. He was not
permitted to change his town of residence or employment or to leave this town without prior permission
from the police. The restrictions on his freedom of movement were reduced several years later and
eventually eliminated.
206
ICCPR, supra note 159, art. 9 (stating that “No one shall be subjected to arbitrary arrest or detention“
and that “Anyone arrested or detained on a criminal charge shall be brought prompty before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable
time or to release“).
207
Id. at art. 4(1).
208
Id. at art. 4(1).
209
Id. at art. 4(3) (“ Any State Party to the present Covenant availing itself of the right of derogation shall
immediately inform the other States Parties to the present Covenant, through the intermediary of the
Secretary-General of the United Nations, of the provisions from which it has derogated and of the
reasons by which it was actuated”).
210
United Nations Committee Against Torture, General Comment No. 1: Implementation of article 3 of
the Convention in the Context of Article 22 (Refoulement and Communications), ¶ 2, U.N. Doc. No.
HRI/GEN/1/Rev.7 (Nov. 21, 1997); Lauterpacht and Bethlehem, supra note 171, at 160.

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Human rights treaties binding on the United States provide general
principles to guide the administrative agencies responsible for
immigration proceedings. Certain groups of non-citizens should be
entitled to heightened due process protections in immigration
proceedings—a principle consistent with policy preferences
underlying domestic law immigration law. These groups include noncitizens lawfully present, non-citizens with a claim to protection
against persecution or torture, and non-citizens with strong family
ties.
Criticism of Human Rights Treaties

The incorporation of human rights law into the domestic sphere
has been criticized by both opponents of international law and
supporters of immigrants. The first group claims that international
law, and human rights law specifically, threatens American
sovereignty and identity. 211 The second criticism raises a concern that
a turn to human rights law may dilute American norms protective of
immigrants’ rights and focuses excessively on the rights of
immigrants rather than on the benefit to society from immigration. 212
I address these arguments in turn.
One line of arguments against the incorporation of international
law into the domestic legal arena claims that such a move is harmful
to American sovereignty and identity. By implementing international
laws written by an unelected “world authority”, so the argument goes,
we are ceding our democratically determined values to authorities
that may ignore important government interests. 213 Moreover,
American culture is unique in many ways, and international law may
not sufficiently prioritize fundamental American values. 214 The
treaties examined in this article – the ICCPR, the Refugee
Convention, and the Convention Against Torture – were each ratified
211

See, e.g., Jack Goldsmith, The Unexceptional U.S. Human Rights RUDs, 3 U. St. Thomas L. J. 311,
321-27 (2005); Curtis Bradley, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev.
399 (2000); John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the
Original Understanding, 99 Colum. L. Rev. 1955 (1999).
212
Hiroshi Motomura, Federalism, International Human Rights, and Immigration Exceptionalism , 70 U.
Colo. L. Rev. 1361, 1386-87 (1999).
213
Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s
Multiple Ports of Entry, 115 Yale L. J. 1564, 1609 (2006) (cataloguing current criticisms of international
law such as the belief held by Justices Rehnquist and Thomas that “[I]nternational guarantees put
protections of the Bill of Rights in jeopardy” and the belief that “[T]ransnational law making drains too
much authority from America’s elected officials.”).
214
See, e.g., O’Scannlain, supra note 21, at 1906-07 (stating such values that make the United States
different as “[T]he intentions of the Constitution’s Framers [holding] a privileged position in American
jurisprudence” to the degree that the Founding generation is given a significant degree of deference, the
“American Creed” of liberty, equality, individualism, democracy, and the rule of law as the definition of
what it means to be American such that the loss of those ideals would mean the loss of nationality, and
such regrettable differences as the uniquely high violent crime rate and drug use rate in the United States
such that foreign criminal jurisprudence may be inappropriate for the United States to follow)..

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by the Senate and signed by the President. As exemplified in the case
study presented above, the United States played an active role in
drafting and in promo ting these human rights treaties. Created by
sovereigns, and by this sovereign in particular, the treaties carefully
balance governmental interests and individual rights. The outcomes
of legal rights analyses under these treaties are reasonable, and not far
from the letter of American law. And because much of this law was
drafted by American officials, human rights treaties often reflect and
promote fundamental American values. Where human rights law
appears to differ from these norms, it can often be adapted to the
American context while meeting the minimum requirements of rights
protection.
Another line of criticism focuses directly on the use of human
rights law in the immigration context. Professor Hiroshi Motomura
argues that because the United States model of immigration is one of
transition to citizenship, distinct from many of its peer nations that do
not regard themselves as immigrant nations, American norms may be
diluted through the application of human rights law to immigration
processes. 215 In addition, human rights law focuses on individual
rights of immigrants rather than the ways in which they benefit
society. To the first argument, the case study of secret evidence in
immigration court illustrates that human rights law is a floor, not a
ceiling. As with those examined in this paper, many human rights
treaties were drafted by Americans and reflect our norms. While nonimmigrant nations may contain different domestic conceptions of
immigration law, the same human rights treaties apply to them, as we
see with the example of secret evidence. Even in civil law countries
without an adversarial tradition, human rights treaties and treatyenforcing bodies have protected the right to confrontation for certain
groups of non-citizens. Second, while it is important to focus on the
ways in which immigrants benefit society, it is equally crucial to
secure the rights of non-citizens, especially those who may not appear
to benefit society or fit the “model immigrant” mold. A human rights
framework humanizes non-citizens, making clear that they are not
simply economic beings, and in this way helps to prevent
mistreatment of immigrants. 216
HUMAN RIGHTS IN STATUTORY INTERPRETATION, REGULATION DRAFTING,
AND INSTITUTIONAL CULTURE

While much of the academic discussion of domestic incorporation
of international law and human rights treaties focuses on federal
courts and constitutional interpretation, this article points instead to
215

Hiroshi Motomura, Federalism, International Human Rights, and Immigration Exceptionalism , 70 U.
Colo. L. Rev. 1361, 1386-87 (1999).
216
See Wexler, supra note 149 at 388-396.

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the administrative agencies responsible for the immigration process
as the site for incorporation. First, immigration courts and the Board
of Immigration Appeals can and should look to human rights law
when interpreting the INA, extending the Charming Betsy principle to
the administrative context. 217 Second, the DHS and DOJ should take
human rights obligations into account when drafting immigration
regulations. Finally, these agencies should inculcate a culture of
human rights in their employees to prevent future misuse of secret
evidence.
Perhaps the most obvious way in which the immigration
bureaucracy can utilize human rights law is to rely on it as a guide to
statutory interpretation. 218 This approach might draw in additional
safeguards from treaty text and soft law to protect individual rights
while insuring that national security interests are respected.
Administrative agencies responsible for the immigration process have
already turned to human rights treaties for guidance, a sensible
approach given immigration law’s direct rooting in international
law. 219 These agencies should also look to human rights treaties when
drafting immigration regulations to ensure that efforts to protect
national security do not needlessly trample individual rights. 220 We
might see as a result less discretion given to immigration officials to
rely on secret evidence at their whim, ensuring that government
actions are more narrowly constrained by law (for example, by
requiring the presentation of compelling national security reasons for
offering secret evidence). Through the use of human rights law to
interpret statutes and draft regulations, the immigration courts and
Board of Immigration Appeals as well as high- ranking DOJ and DHS
officials can create a legal framework that is more thorough in its
protection of individual rights, incorporating procedural safeguards to
prevent the misuse of secret evidence.
217

Murray v. Schooner Charming Betsy , 6 U.S. 64, 118 (1804) (“an act of Congress ought never to be
construed to violate the law of nations if any other possible construction remains . . .”).
218
See Cole, supra note 151 at 645-648 (noting that the use of human rights law by federal courts to
interpret immigration law has already been done responds to concerns abo ut judicial activism and nonself-executing treaties and is consistent with immigration law jurisprudence, which relies heavily on
statutory construction).
219
See, e.g., Memorandum from Phyllis Coven, Office of Int’l Affairs, Dep’t of Justice, on
Considerat ions for Asylum Officers Adjudicating Asylum Claims from Women, to All INS Asylum
Office/rs & HQASM Coordinators (May 26, 1995) (on file with author) (reviewing the historical and
human rights context in which guidance on gender-sensitive and gender-based adjudications have
evolved internationally); see also Gerald P. Heckman, Securing Procedural Safeguards for Asylum
Seekers in Canadian Law: An Expanding Role for International Human Rights Law? , 15 Int’l J. Refugee
L. 212 , 237-238 (2003) (discussing Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, in which the Canadian Supreme Court directed the Minister of Citizenship and
Immigration to rely on the Convention on the Rights of the Child, a treaty Canada had ratified (see
http://www.unhchr.ch/pdf/report.pdf) but had not implemented through domestic legislation, in
discretionary decision-making.).
220
See, e.g. supra note 220 (explaining that current regulations governing removal of terrorism suspects
at the border do not explicitly ensure protection against removal to torture).

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While a more carefully crafted process is an important first step,
this focus on human rights will not take root unless it is accompanied
by a change in institutional culture. Remember that in the cases
studied above, these were lawyers who presented inaccurate
evidence; their legal training should have alerted them to the serious
dangers of relying on evidence that they had not tested. Moreover,
procedural devices that protect national security and due process –
namely, protective orders – were available but these lawyers chose
instead to withhold the evidence entirely. 221 A single- minded focus
on national security interests, without consideration of protecting
individual rights as an important goal, will enable governme nt
officials to find loopholes even in statutes interpreted and regulations
drafted through human rights law.
The literature on administrative behavior provides insight into this
phenomenon.
If an administrator, each time [s]he is faced with a decision,
must perforce evaluate that decision in terms of the whole
range of human values, rationality is impossible. If [s]he
need consider the decision only in light of limited
organizational aims, h[er] task is more nearly within the
range of human powers. 222
The problem, of course, with this focus on one set of values is that the
administrator makes incorrect decisions in cases in which the
“restricted area of values with which [s]he identifies h[er]self must be
weighed against other values outside that area.”223 Applying this
framework to the use of secret evidence in immigration court, we can
posit that government officials have restricted their value system to
emphasize enforcement only, and therefore fail to take into account
individual rights in their decision- making processes – leading them to
present evidence that a well- trained lawyer should recognize as
unreliable and inappropriate.
In order to “effectively regulate the behavior of . . . agents of
social control,” these administrative agencies should tur n to a “selfregulatory” approach, ensuring that officials internalize the
importance of balancing security concerns with respect for individual
rights. 224 This strategy requires “[c]ongruence between rules and an
individual’s moral values,”225 which is where human rights treaties
can play an important role. The essentially moral nature of human
rights law makes it a powerful starting point for a self-regulatory
institutional culture. Training immigration officials in the basics of
221

See supra text accompanying notes 63-70.
Herbert A. Simon, Administrative Behavior, at 12 (4th ed. 1997).
223
Id.
224
Tom R. Tyler, et al., Armed, and Dangerous (?): Motivating Rule Adherence Among Agents of Social
Control, 41 Law & Soc’y Rev. 457, 457, 462– 66 (2007).
225
Id. at 464.
222

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human rights law, and perhaps more importantly, teaching them to
respect and even promote human rights could lead to a shift in
institutional culture. 226 This training would necessarily be reinforced
through various mechanisms, including an internal regulatory organ
that ensures compliance with human rights norms. 227 Combined with
a legal framework that incorporates human rights concerns, this
institutional culture of human rights could transform the DHS and
DOJ into not only more just, but also more effective agencies.
CONCLUSION

A human rights approach to immigration proceedings offers a
powerful solution to the problem of secret evidence. Balancing
national security interests and individual rights, human rights treaties
that bind the U.S. can effectively address the individual, societal, and
global harms resulting from the misuse of secret evidence in
immigration court. This type of change in the immigration
bureaucracy could be a first step towards repairing America’s
damaged image, indicating to both immigrant groups within the
country and potential allies in other nations that America can be
trusted to treat them fairly and protect their interests. Such a move
will make our country not only safer, but more powerful as a world
leader.
On an individual level, the increased procedural fairness resulting
from the incorporation of human rights law into statutory
interpretation, regulation drafting, and institutional culture will
prevent the above-catalogued harms that inevitably result from the
misuse of secret evidence. As administrative adjudicators and
supervisors begin to interpret immigration laws through a human
rights lens and as regulation drafters take human rights into account
when crafting administrative rules, opportunities for immigration
officials to abuse their discretion will be constrained. Moreover, as a
human rights culture is inculcated in these administrative agencies,
officials will begin to self-regulate, ensuring that individual rights are
balanced with national security interests in their decision- making.
For example, immigration officials ensconced in a human rights
culture would first test the reliability of secret evidence before
presenting it in court because of the moral value of ensuring that a
226

For example, human rights norms could be used in training ICE officers to exercise discretion during
apprehension and removal of immigrants. See U.S. Gov’t Accountability Office, Immigration
Enforcement: ICE Could Improve Controls to Help Guide Alien Removal Decision Making 23 (2007),
available at http://www.gao.gov/new.items/d0867.pdf (noting the need for guidance to ICE on
exercising discretion in encounters with noncitizens who present humanitarian issues and with
noncitizens who are not ICE targets).
227
Others have suggested the creation of a board in the Executive branch to oversee various agencies’
commitment to defending individual rights. The 9/11 Commission Report: Final Report of the National
Commission on Terrorist Attacks Upon the United States, 395; Cole, supra note 151 at 655-56, quoting
Elisa Massimino, Holding America Accountable, The American Prospect, Oct/ 2004, at A14.

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non-citizen is not wrongly deported. Moreover, these officials would
be more sparing in their use of secret evidence, as they would weigh
the importance of confrontation rights as part of their legal strategy.
The elimination of the individual harms wrought by the misuse of
secret evidence in immigration court is a valuable goal in and of
itself.
In turn, the minimization of individual harms and a more general
respect for individual rights will have powerful societal
consequences. Instead of alienating immigrant communities, as the
misuse of secret evidence does, a human rights approach would
demonstrate an inclusive attitude towards non-citizens – a message
that is crucial to the fight against terrorism. In the words of the 9/11
Commission, “[o]ur borders and immigration system, including law
enforcement, ought to send a message of welcome, tolerance, and
justice to members of immigrant communities in the United States
and in their countries of origin.”228 To create a safer America, we
must enlist these communities in the struggle against terrorism, and a
human rights approach to the immigration process is a compelling
way of inviting Arab, Muslim, and South Asian immigrant groups to
join our team. A human rights approach would also uphold the
fundamental American values of procedural fairness that have been
damaged through the misuse of secret evidence, returning our society
to its roots and to the moral high ground simultaneously.
Finally, on a global level, human rights law is a uniquely
appropriate way of repairing fractured relations with our international
allies and the world community more generally. The incorporation of
human rights law into domestic immigration proceedings performs a
powerful expressive function, stating clearly to the rest of the world
that America wishes to abide by their rules in its treatment of their
citizens. 229 Such an approach holds not only moral, but also strategic
value. Again, the 9/11 Commission states, “[t]he U.S. government
must define what the message is, what it stands for. We should offer
an example of moral leadership in the world, committed to treat
people humanely, abide by the rule of law, and be generous and
caring to our neighbors. America and Muslim friends can agree on
respect for human dignity and opportunity.”230 Only by acting as a
moral beacon and finding common ground with allies and potential
allies will the United States have a chance of defeating the forces of
228

The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon
the United States, 390.
229
See, e.g., Owen Fiss, Against Settlement, 93 Yale L.J. 1073, 1085–87 (1984) (noting the value of
adjudication in expressing constitutional values); Abram Chayes, The Role of the Judge in Public Law
Litigation, 89 Harv. L. Rev. 1281 (1976) (arguing that adjudication is often used to validate statutory and
constit utional policies).
230
See The 9/11 Commission Report, supra note 228 at 376 (describing how in order to achieve this
goal, the United States must evidence respect for the rule of law).

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terrorism. A human rights approach to immigration proceedings
would be a powerful first step in that direction.

50

 

 

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